Cities Battle State Legislatures for the Right to Regulate Vapes   

Keeping tobacco products out of the hands and mouths of children should be an easy point of universal, bipartisan agreement. Indeed, even the “the most ideologically polarized” Congress in modern history managed to pass the Family Smoking Prevention and Tobacco Control Act of 2009, which banned sales of cigarettes to individuals under the age of 21 and outlawed any “characterizing flavors” other than menthol.

But in the ensuing decade or so since that law was passed, e-cigarettes (also known as vapes) have blasted onto the market. These are now the most commonly used tobacco product among U.S. youth. In particular, tobacco companies have succeeded in making flavored e-cigarettes — which are not subject to the 2009 law’s sales ban — wildly popular with tweens and teens. In 2024, the annual National Youth Tobacco Survey reported that 1.63 million middle and high school students used e-cigarettes; of those students, nearly ninety percent used flavored e-cigarettes. At the same time, tobacco remains “the cause of one of five deaths annually in the United States,” which is “more deaths than human immunodeficiency virus (HIV), illegal drug use, alcohol use, motor vehicle injuries, and firearm-related incidents combined,” according to the Center for Disease Control.

It’s no surprise, then, that cities across the nation have passed laws and ordinances to keep these products away from children. But such cities are discovering that tobacco companies have a powerful ally: Many state legislatures, capitulating to intense lobbying pressures, have passed state laws blocking cities from banning or regulating e-cigarettes and other tobacco products. Cities are now locked in pitched battles against these state laws — and some are winning.

In July, for example, an Ohio appellate court found in favor of Columbus and other Ohio cities when it struck down a state law that prohibited localities from regulating tobacco. The court held that the state law violated an amendment in the Ohio Constitution granting cities the power of local self-governance.

The case was the latest move in a heated skirmish between multiple branches of Ohio government over the regulation of tobacco, particularly prohibitions on the sale of flavored tobacco products. This fracas began in December 2022 after Columbus passed an ordinance that “authorized the Columbus Department of Public Health to enforce the city’s tobacco laws and health code, establish a system of civil penalties including fines and license revocation for violating tobacco regulations, and banned the sale of flavored tobacco products.” Two days later, the Ohio legislature responded by passing a state law prohibiting all local regulation of tobacco products. The governor vetoed the bill, explaining that tobacco use resulted in increased health care costs in the state — including costs borne by Ohio taxpayers — and that tobacco companies marketed flavored tobacco products “specifically to appeal to youth.” Undeterred, six months later the legislature passed another law, again prohibiting local regulation of tobacco products. Again, the governor vetoed it. That time, though, the legislature voted to override the governor’s veto and enacted the law.

The state law declared that the regulation of tobacco products was of statewide concern and asserted that the state had “adopted a comprehensive plan with respect to all aspects” of tobacco regulation, such that cities were not permitted to regulate in this same area. Columbus and other cities sued, arguing that the law violated constitutional home rule in Ohio.

Home rule delegates authority from state to local governments and empowers localities to engage in self-governance and pass the laws desired by that local community. In Ohio, the state constitution grants municipalities the “authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” Ohio courts have developed a specialized definition and framework for identifying which state laws are “general” and which are not. Courts consider whether the challenged state law is part of a broader statewide regulatory scheme and whether it either actively regulates the public welfare or instead only limits local power.

Here, the court held that the state law was not a “general law.” Rather than setting out its own regulations, the court said, the law simply purported to prohibit any local regulation. The court noted — but rejected — one possible interpretation of the state statute that could render it a general law: reading the challenged law in combination with other state regulations of tobacco. This tool of statutory construction, known as in para materia, directs courts to interpret ambiguous statutes by looking to related statutes for clarity. Applying the method here could expand the meaning of the statute to include substantive regulation set forth in other tobacco statutes. But, the court said, an unambiguous statute “drafted with definitive language and unmistakable intent” — such as the preemption law at issue here — “ought not be subject to further interpretation.” 

Moreover, the court presented conflicting case law both applying and refusing to apply that statutory rule of construction. “Without settled authority on whether, when, and how to apply” the doctrine in home rule cases, the court said, it would “spare statutory construction until it becomes necessary to ‘say what the law is’ and discern an ambiguous statute.”

The court then stated that the state law would violate constitutional home rule even without the finding that it was not a general law, since it “contravene[d] the original intent of the Home Rule Amendment.” The impugned state law “regulates nothing yet seeks to preempt the field of tobacco policy,” the court observed. Noting the need for cities to enact laws responsive to the particular problems they face, the court stated that the statute was “undermining the fundamental principle of the Home Rule Amendment that the government closest to the people serves the people best.”

Columbus v. Ohio is a clear victory for home rule, but it is probably not the end of the matter. The state may appeal the case to the Ohio Supreme Court and, given the uncertainty surrounding the application of the in pari materia doctrine, seems likely to do so. Nor is it the end of the matter more broadly: Cases presenting conflicts between state and local tobacco regulations are percolating or pending across the nation. In Oregon, the state supreme court is poised to soon hear an appeal of a decision that a state statute did not preempt a county ordinance prohibiting the sale of tobacco products. In Missouri, new legislation limiting city regulation regarding tobacco is before the state senate. If it passes, that legislation will likely be challenged.

These new conflicts come on the heels of recent decisions in this area: In Massachusetts, the state supreme court held last year that a city’s unusual “Nicotine-Free Generation” ordinance — which allows for continued tobacco sales to persons of age when the ordinance was passed but prohibits tobacco sellers from ever selling to anyone not of age when the ordinance passed — was not preempted. Courts in Michigan and Kansas have also released decisions related to tobacco preemption, with mixed results.

The stakes of these cases could not be higher. The health consequences of vaping in children are significant and potentially lifelong. Recent public health initiatives on multiple fronts have successfully brought down the number of young people vaping from the peak number of 5 million young vapers in 2019 to 1.63 million in 2024, and city prohibitions on the sale of flavored tobacco are an important part of these efforts. That their own states often serve as antagonists in these endeavors is an affront to both public health and local democracy.

Sarah L. Swan is a professor of law and Dean’s Civil Governance Scholar at Rutgers Law School.

Suggested Citation: Sarah L. Swan, Cities Battle States for the Right to Regulate Vapes, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Sep. 09, 2025), https://statecourtreport.org/our-work/analysis-opinion/cities-battle-state-legislatures-right-regulate-vapes