United States: Oregon Court of Appeals Invalidates E-Cigarette Packaging Law

On October 16, 2024, the Oregon Court of Appeals struck down a law restricting the packaging of e-cigarettes and cannabis products, ruling it unconstitutional because it was deemed to infringe on free speech. The ruling came in Bates v. Oregon Health Authority[1], and challenges regulations aimed at limiting the appeal of these products to minors.

A restrictive law to protect young people

The relevant law, ORS 431A.175(2)[2], prohibited inhaler systems (such as e-cigarettes) from having packaging that “appeals to minors.” To clarify this prohibition, the Oregon Health Authority adopted regulation OAR 333-015-0357[3], defining the criteria for what is considered attractive. It prohibited the use of:

• comics;
• celebrities, athletes, mascots, fictional characters, or any person likely to attract minors;
• images or references to foods and beverages popular with young people, such as candy, desserts, sodas or alcoholic beverages with sweet flavors, including fruit;
• appealing flavor terms or descriptions, such as "sour," "sweet," "fresh," "spicy," "icy," "poppin'," "juicy";
• shapes reminiscent of animals, recognizable toys, sports equipment or sweets/confectionery.

In addition to this detailed list, the regulation included a general restriction prohibiting any aspect of the packaging, whether by its shape, colors, graphics or writing, that could attract minors.

A debate about freedom of expression

The plaintiffs, Paul Bates and No Moke Daddy LLC, challenged the restrictions, arguing that they were overly broad and vague, and that they violated their right to free speech by prohibiting truthful and non-misleading communication. The lower court had dismissed their claim, holding the law constitutional, but the Oregon Court of Appeals reversed that decision, holding that the law violated freedom of speech as defined in Article I, Section VIII of the Oregon Constitution.

According to the judges, although packaging is not "intrinsically expressive" by nature, the restrictions on "attractive" elements primarily target the communicative aspects of packaging, such as images and messages intended to appeal to young people. The court emphasized that the law was not concerned with the actual effect of packaging on young people's behavior (for example, whether children buy these products because of their appearance), but rather with the nature of the message conveyed by these packages. By prohibiting these communicative elements, the law thus restricted a form of speech that can be protected by freedom of expression.

A concern shared internationally

The issue of the attractiveness of vaping product packaging to young people is not limited to Oregon. In the United Kingdom[4], public health experts have also called for measures to ban packaging that uses cartoon characters, bright colours and names referring to confectionery, to reduce the appeal of these products to minors.

Indeed, experts point out that colorful packaging, cartoon characters, and flavors with attractive names play a major role in attracting young people to vaping products. In response to these marketing strategies, France has included in its PNLT 2023-2027 program the introduction of a neutral package for vaping product packaging, in order to reduce their attractiveness to young people.

In this context, the Oregon Court of Appeals’ decision could have worrying implications for the protection of young people, although the real impact remains to be seen. Indeed, there is ample precedent in other countries that shows that constitutional courts have accepted restrictions on commercial freedom and the right to use trademarks for public health reasons. It also remains to be seen whether an appeal against the decision will be filed.

©Generation Without Tobacco

RK

[1] https://law.justia.com/cases/oregon/court-of-appeals/2024/a180270.html (accessed 24/10/2024)

[2] https://oregon.public.law/statutes/ors_431A.175 (accessed 24/10/2024)

[3] https://oregon.public.law/rules/oar_333-015-0357 (accessed 24/10/2024)

[4] https://www.generationsanstabac.org/fr/actualites/royaume-uni-experts-sante-publique-denoncent-emballages-produits-vapotage/ (accessed 24/10/2024)

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