In the stock room at Division Vapor in Portland, Oregon, there is a metal rack holding all manner of e-liquids with a sign reminding employees to "Censor Before Stock!" It refers to state regulations that require merchants to obscure allegedly child-enticing images and words before displaying vaping products to customers. Division Vapor uses stickers to comply with the state-mandated censorship, which in many cases requires covering almost the entire label.
In a lawsuit filed in Multnomah County Circuit Court today with help from the Goldwater Institute, the shop's owner, Paul Bates, argues that the state's labeling restrictions violate the Oregon Constitution's free speech guarantee. "These rules are content-based speech restrictions," the complaint says. "They are also vague, incomprehensible, and overbroad, and they censor truthful, non-misleading speech about legal products."
The regulations, issued by the Oregon Health Authority (OHA), elaborate on a state law that says vaping products may not be "packaged in a manner that is attractive to minors." In 2016 the OHA decreed that labels cannot feature cartoons or "celebrities, athletes, mascots, fictitious characters played by people, or other people likely to appeal to minors." Nor can they depict "food or beverages likely to appeal to minors such as candy, desserts, soda, food or beverages with sweet flavors including fruit or alcohol." This year the OHA also forbade "terms or descriptive words for flavors that are likely to appeal to minors such as tart, tangy, sweet, cool, fire, ice, lit, spiked, poppin', juicy, candy, desserts, soda, sweet flavors including fruit, or alcohol flavors."
In practice, that means a merchant selling, say, apple-flavored e-liquid has to cover up the word apple, the descriptor tart, and the picture of an apple on the label of the tiny bottle. The requirement applies even to stores, such as Division Vapor, that do not admit minors. "We spend three or four hours a week—employees making $13 to $18 an hour—putting labels over offending material," Bayes says in a Goldwater Institute video. "This nitpicky work," he says, is a "waste of money…when we could be using that money to help people transition from smoking to vaping."
Worse, the expurgated labels are completely unhelpful to customers interested in trying various flavors of e-liquid, as smokers who switch to vaping typically do. "These censorship stickers make it difficult for customers to differentiate between vaping fluids," the complaint notes. "When a label is censored, a store's employee must usually describe the product for the customer, rather than relying on the label to convey information about the product. As a consequence of the censorship requirements, Division Vapor has been forced to cease selling certain product lines because the labels must be completely covered by censorship stickers, rendering sale of these products economically impracticable."
Article I, Section 8 of the Oregon Constitution says "no law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject." That guarantee, the complaint says, "prohibits the government from mandating that businesses censor truthful, non-misleading speech about the products they sell." The lawsuit also argues that the statute censoring e-liquid labels is unconstitutionally overbroad, applying to words and pictures that are not especially appealing to children in settings where no minors are present, and unconstitutionally vague, "because it fails to give Plaintiffs and other people of ordinary intelligence reasonable notice about what labels are permitted and what labels are forbidden."
Oregon's law is another example of policies, such as the Food and Drug Administration's restrictions on e-cigarette flavors, that impinge on the choices of adults in the name of preventing underage vaping. "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," says 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."