The Ohio Supreme Court agreed to hear a case Tuesday that could decide whether state officials can deploy Ohio’s consumer protection laws to ban the sale of flavored vapes and e-cigarettes.

Ohio Attorney General Dave Yost, a Republican, appealed the case to the high court after both county and appellate courts ruled against him. The lower judges all held that federal law regulates the marketing of tobacco products, and that states can’t use their authority to enforce the federal rules. 

A ruling from the Supreme Court, currently under 6-1 Republican control, could impact public health officials’ statewide mitigation efforts to limit the 1 in 5 Ohio high schoolers who report tobacco use. 

The case is one of two major legal efforts implicating Ohio’s authority to restrict sales of a leading killer of Americans. The justices will also rule in the coming months on a state law, passed despite a veto from GOP Gov. Mike DeWine. That law prohibits Ohio cities from banning the sale of all flavored tobacco products (including increasingly popular nicotine pouches) and enforcing Ohio’s 21-and-up sale requirements for tobacco and nicotine products. 

Yost in July 2024 took aim at flavored vape sales through something of a legal backdoor. He filed lawsuits against three vape sellers around Ohio, accusing them of violating Ohio’s bedrock consumer protection law. The stores sold flavored vape products, none of which have been approved by the U.S. Food and Drug Administration, which regulates tobacco products. The state attorneys argued the vape shops failed to disclose the illegal nature of the vapes. 

“You don’t have any idea what is in those vape cartridges,” Yost said in a news release when his office filed the lawsuits. “This is a consumer protection issue, particularly when it comes to our youngsters that are still developing, the idea these unregulated, unauthorized vapes are on the market is a real danger.”

However, a panel of judges from the state’s Fifth District noted U.S. Supreme Court precedent finding that “only the federal government can enforce” the Food, Drug and Cosmetics Act, which requires federal approval to market a new vape product. 

Yost’s lawsuits amount to a violation of what’s known as a “preemption,” where a larger government stops a smaller one from enacting its own set of rules, the judges said. 

“The State’s claim that the e-cigarettes are not in compliance with the FDCA is a claim that would not exist in the absence of the FDCA,” the judges wrote. “Therefore, the State is impliedly preempted from bringing this action.”

A Yost spokesperson didn’t respond to an inquiry. 

Ohio Supreme Court to consider different tobacco preemption case as well

The lawsuits from Yost come in the context of a broader struggle between DeWine, a Republican with a long history of anti-tobacco advocacy, and his fellow party members who control the state House and Senate. 

Throughout his two terms as governor, DeWine has urged lawmakers to send him legislation to ban the sale of flavored tobacco products, including vapes – whose candy and fruity variations appeal to children and can soothe the harshness of a drag. He has also sought to increase funding for tobacco cessation and prevention efforts, and add to state enforcement of Ohio’s 21-and-up laws.

Lawmakers have pulled in the opposite direction, enacting preemption legislation of their own to stop Ohio cities from banning flavored tobacco. Lawmakers overrode a veto from DeWine to enact the measure, which declares tobacco and nicotine regulation as “a matter of general statewide concern that requires statewide regulation,” including when it comes to the marketing of such products. 

The state law would effectively nix local flavor tobacco bans of varying specifics from Athens, Barberton, Bexley, Cincinnati, Cleveland, Columbus, Dublin, Gahanna, Grandview Heights, Heath, Hilliard, Kent, North Ridgeville, Oberlin, Oxford, Reynoldsburg, Springfield, Toledo, Upper Arlington, Whitehall, and Worthington, per court records. 

In that case, Yost has been defending the state law and appealing the decisions of lower court judges. They ruled the state law was “unconstitutional for its blatant disregard of the Home Rule Amendment.”

That case is pending at the court.