The Ohio Supreme Court is grappling with a critical question: Can state officials use consumer protection laws to crack down on the sale of illegal flavored e-cigarettes? This legal battle is part of a broader effort to address what many see as a growing public health crisis, particularly among young people.
With nearly 1 in 5 Ohio high schoolers reporting recent e-cigarette use, the stakes are high. The court’s decision will not only impact the sale of flavored vapes but also set a precedent for how states can respond to federal regulations on tobacco products.
Federal vs. State Authority in Tobacco Regulation
The heart of the debate centers around the Food, Drug, and Cosmetic Act (FDCA) which gives the FDA the authority to regulate tobacco products. Currently, the FDA has approved only 45 menthol or tobacco-flavored e-cigarettes, making most fruit, candy, and other flavored vapes illegal. However, enforcement of these regulations has been lax, leaving states to fill the gap.
Marisa Katz, an attorney with the Public Health Law Center argues that states are better positioned to respond to local problems quickly. “They can’t monitor every product sale across the country,” she said of the FDA. This sentiment underscores the importance of the Ohio Supreme Court’s decision, as it will determine whether states like Ohio can step in to protect consumers.
The Legal Battle: Central Tobacco and the Ohio Attorney General
In 2026 then-Ohio Attorney General Dave Yost filed civil lawsuits against three retailers: Orrville Tobacco in Wayne County, Central Tobacco in Delaware County, and Elev8 Smoke Shop in Cincinnati. The lawsuits allege that these stores violated the Ohio Consumer Sales Practices Act (CSPA) by selling illegal flavored e-cigarettes.
Sam Peterson, a lawyer for the current Ohio Attorney General Andrew Wilson argued that the flavored e-cigarettes being sold are illegal, and the state has the legal right to prohibit their sale. However, James Fraser, an attorney for Central Tobacco, contended that the state is conflating marketing approvals and product safety. “They say, if you put a sign next to the product in the store that says, ‘these products are illegal,’ then the state seems to be saying there is no problem,” Fraser said.
Mixed Signals from the Justices
During oral arguments, the justices offered mixed signals on how they might rule. Justice Jennifer Brunner the court’s lone Democrat, stated that “consumers are being duped” when stores stock illegal products on the shelves and imply that they’re legal. Justice Pat DeWine a Republican, seemed to agree at times, asking, “Isn’t it reasonable to think that someone who walks into a store and picks it up off a shelf thinks it’s a legal product?”
Ohio Cities Take Action Against Flavored Tobacco
Despite the prohibition, sales of flavored, disposable vapes have surged across the U.S. In response, Democratic-controlled cities in Ohio, particularly in the Columbus area, have enacted their own bans on flavored tobacco products. These bans vary and sometimes include flavors of Zyns an increasingly popular oral nicotine pouch. The cities have also implemented their own enforcement schemes to uphold these laws, as well as Ohio’s 21-and-up tobacco law.
Republican state lawmakers responded with a “preemption” law, which claims the policy arena for the state and forbids cities from passing stiffer regulations. This law was passed with the supermajority required to override a veto from Gov. Mike DeWine. Cities have challenged this law, citing a home rule provision in the state constitution that grants them political autonomy. Oral arguments were held in June, and the Ohio Supreme Court is now poised to rule on both cases.
The outcome of these legal battles will have far-reaching implications for tobacco regulation in Ohio and beyond. As the court deliberates, the focus remains on protecting consumers and addressing the public health concerns associated with flavored tobacco products.
