Vapes of Wrath: Fighting E-Cigarette Censorship at the Oregon Supreme Court

All business owners have the right — and the need — to communicate truthfully with their customers. But even though the vaping products that business owner Paul Bates sells are perfectly legal, the Oregon government prohibits him from accurately describing them to the adults who shop at his Portland store.

That’s government censorship, and it’s unconstitutional. Last year the Oregon Court of Appeals agreed and struck down the free speech restrictions. But the state appealed the ruling. So, on Wednesday afternoon the Goldwater Institute argued before the Oregon Supreme Court in defense of one of the most basic rights protected by the Oregon Constitution: freedom of speech.

“The customers of Paul’s vape shop — many of whom are trying to kick cigarettes — deserve to know what they’re buying, and Paul has a right to tell them. Unfortunately, Oregon state regulators are illegally censoring that critical communication,” said John Thorpe, a staff attorney at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation. “We’re confident the Oregon Supreme Court will see this for what it is: a clear violation of Paul’s free speech rights.”

At the heart of this case is a state law that bans e-cigarette businesses from using any packaging that the Oregon Health Authority (OHA) arbitrarily deems “attractive to minors.” Shortly after the law was enacted, the OHA issued a sweeping list of prohibited terms—words and phrases ranging from “cool,” “lit,” and “poppin’,” to “tart” and “tangy.” The state even forbids packaging from including fruit flavors like “strawberry” and “apple,” even though those words are just factual descriptions of products that are legally sold to adults.

Because of the law, Paul and his staff are forced to spend their valuable time putting censorship stickers over the flavors on their product labels. They shouldn’t have to. Oregon’s constitution, like many other states, recognizes that business owners are just as entitled to free speech as other Americans, and that “commercial speech,” the lifeblood of American commerce, is critical not only for business owners but for customers looking to make informed decisions.

While the state regulators insist that they’re protecting children, they’re not — the law already bars minors from buying vaping products or entering adult-only businesses that sell them. All they’re really doing is censoring speech by and for adults.

The Goldwater Institute sued on behalf of Paul and his business in December 2018. Last year the Oregon Court of Appeals ruled in their favor, recognizing that the government cannot ban lawful businesses from truthfully describing their products.

The Oregon Supreme Court now has the final say. This was the seventh state supreme court in which the Goldwater Institute stood up for individual rights and government accountability.

You can learn more about the case here.

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