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Some Oregon Small Business Owners’ Free-Speech Rights Are Being Vaporized

December 11, 2018

December 11, 2018

Phoenix—What if you walked into an ice cream shop, but the store owner couldn’t tell you what any of the flavors were? This may sound ludicrous, but an Oregon law is keeping some business owners from speaking in such a way—and the Goldwater Institute is taking a stand to protect their right to share truthful information about lawful products with their customers.

Vaping is like smoking without the smoke—a cleaner version of cigarettes or cigars, where people inhale vapor through electronic devices about the size of a pen. Some people vape for fun, because they enjoy the flavors, or because they want a safer alternative to smoking cigarettes, or because the smell doesn’t disturb others as cigarettes do. But the state of Oregon recently enacted regulations that prohibit vape shops from providing accurate information to their customers about legal products—for example, they are not allowed to sell, say, a strawberry-flavored vaping liquid with a drawing of a strawberry—or even the word “strawberry”—on the label because the state regulators say such products are appealing to children. But these rules are less about protecting kids and more about prohibiting business owners from describing their products to their customers.

The Goldwater Institute has filed a lawsuit in Oregon District Court on behalf of entrepreneur Paul Bates, the owner of Portland vape shop Division Vapor, to challenge Oregon’s anti-speech regulations.

Today, the Institute has filed a lawsuit in Oregon District Court on behalf of entrepreneur Paul Bates, the owner of Portland vape shop Division Vapor, to challenge Oregon’s anti-speech regulations. Bates opened up his shop several years ago after vaping helped him quit smoking, and many of his customers have also used vaping as a stop-smoking aid. But Bates’ ability to sell products in his store has been severely limited by Oregon’s regulations: In fact, he must censor many of the products with stickers before they can hit the shelves. “I started this business about five years ago, and it’s been hugely rewarding.We’re switching people from smoking to non-smokers, and yet now we have a law that prevents and stops us from having freedom of expression,” Bates said. (You can learn more about his story in the video above.)

Oregon vape shops like Division Vapor must censor their products—covering up all words or images deemed “likely to appeal to minors”—before placing them on store shelves.

Unfortunately, the Oregon regulations are part of a trend of government acting to keep adults from making their own decisions about whether to use lawful products. Even the U.S. Food and Drug Administration (FDA) has recognized the health benefits of switching smokers to e-cigarettes. Yet in its recent statement on e-cigarettes, the FDA has taken steps to limit sales of lawful vaping products. While the FDA claims it is targeting underage vaping,these restrictions—as with Oregon’s regulations—go too far in limiting consumers’ ability to purchase legal products for adult use, and they open the door to further limitations down the road.

“While proponents of Oregon’s regulations say they’re trying to protect children, these rules not only hurt consumers, but they hurt the free speech rights of hardworking small business owners trying to make a living,” said Goldwater Institute Senior Attorney Matt Miller. “We hope that the court will recognize that vape shops like Division Vapor shouldn’t have to censor labels that accurately describe vaping liquids and be prevented from displaying those products in a way that is attractive to adult customers.”

Read more about Bates v. Oregon Health Authority here.


About the Goldwater Institute

The Goldwater Institute drives results by working daily in courts, legislatures and communities to defend and strengthen the freedom guaranteed to all Americans in the constitutions of the United States and all 50 states. With the blessing of its namesake, the Goldwater Institute opened in 1988. Its early years focused on defending liberty in Barry Goldwater’s home state of Arizona. Today, the Goldwater Institute is a national leader for constitutionally limited government respected by the left and right for its adherence to principle and real world impact. No less a liberal icon than the New York Times calls the Goldwater Institute a “watchdog for conservative ideals” that plays an “outsize role” in American political life.



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