Imagine running a small business, but with one big catch: it’s illegal to accurately describe what you’re selling. For years, the Oregon government has been censoring truthful information about e-cigarettes (i.e. vapes), hurting customers who want to learn more about legal products that could help them quit smoking.
Until now. In a victory for free speech rights, the Oregon Court of Appeals this week struck down these unconstitutional restrictions after Goldwater sued state officials on behalf of a vape shop owner.
“I’m grateful the appellate court struck down the government’s attempt to stop me from communicating with my own customers,” says Paul Bates, who owns Division Vapor in Portland. “Shouldn’t my customers have access to the truthful, accurate information they need to make wise choices?”
In 2015, the Oregon Legislature prohibited e-cigarette businesses from packaging their products “in a manner that is attractive to minors.” The Oregon Health Authority then issued a series of additional rules under this law, prohibiting a slew of content that it believed could make e-cigarettes attractive to minors: everything from “cartoons” and “celebrities, athletes, mascots, fictitious characters played by people,” to “terms or descriptive words for flavors … such as tart, tangy, sweet, cool, fire, ice, lit spiked, poppin’, juicy, candy, desserts, soda, sweet flavors including fruit, or alcohol flavors.”
While most would agree that minors shouldn’t buy e-cigarettes, Oregon law already prohibits minors from doing so, and even from entering stores that sell such products. The new restrictions did nothing to protect minors; instead, they were a gross infringement on businesses’ speech rights, banning them from even providing factual descriptions of their products.
The results were as absurd as they were unconstitutional: for instance, while it was perfectly legal to sell strawberry-flavored vaping liquid, it was illegal to put to the word “strawberry” on the bottle—simply because Oregon’s public-health bureaucrats thought that such a label might inadvertently make e-cigarette use more attractive to minors. That put business owners like Paul in the bizarre position of having to place white stickers on the bottles of vaping liquids in his store, censoring descriptions of what the bottles contained, like “apple” or “strawberry.”
These restrictions are blatant violation of the freedom of speech—a liberty so fundamental that it’s protected not only by the U.S. Constitution, but also by the constitutions of all fifty states. Many of these state constitutions, including Oregon’s, recognize that business owners are just as entitled to free speech as other Americans, and that so-called “commercial speech”—the right of business owners to provide customers with accurate information about the products they lawfully sell—is paramount not only for business owners, but for customers, too.
With the help of the Goldwater Institute, Paul sued the Oregon Health Authority in 2021, challenging this draconian restriction on his right to freely communicate with his customers about products he was lawfully selling. On Wednesday, the Oregon Court of Appeals vindicated Paul’s free speech rights, striking down Oregon’s restrictions and holding that the Oregon Constitution prohibits the government from censoring “the expressive content of the packaging of products legally sold to consenting adults.”
In the battle for free speech and other fundamental rights, state constitutions like Oregon’s are often some of the strongest bulwarks of Americans’ liberties. Here at the Goldwater Institute, we’re committed to bolstering these protections and vindicating Americans’ constitutional rights in all fifty states.
You can read the decision here, and read more about the case here.
John Thorpe is a Staff Attorney at the Goldwater Institute.
