The fight over state laws versus local regulations took another turn Tuesday, as the Tenth District Court of Appeals ruled the state does not have the legal authority to prevent communities from regulating flavored tobacco products.
The ruling comes in a lawsuit by cities over a provision supported by Republican lawmakers but opposed by minority Democrats and Gov. Mike DeWine.
Some background
In the 2022 lame duck session, Republican legislators passed a law that prevented cities from regulating flavored tobacco sales. Gov. Mike DeWine vetoed it in early 2023, saying he was concerned about the effect it might have on youth and smoking. Ohio lawmakers slipped the provision into the budget that passed later that year. They said a statewide ban would protect small businesses. Once again DeWine vetoed it, along with 43 other items. But Republican lawmakers overrode the veto early last year.
In April 2024, the city of Columbus challenged the ban by taking the fight to court. A Franklin County judge ruled the state law unconstitutional. The state appealed.
Appeals court agreed with trial court on constitutionality
The Tenth District Court of Appeals has unanimously ruled the legislature was wrong. In writing the opinion for the majority, Judge David Leland, a former Democratic state representative who voted against the ban in 2022, wrote that the state law violated the home rule provision of the state constitution.
Columbus City Attorney Zach Klein said the ruling is a win for home rule.
"It's a great win for cities to do what they think is best," Klein said.
Klein said Columbus regulated tobacco in the past before this law, and it had worked well. He said he hopes this ruling will prompt Ohio's leaders to work together with cities to allow them to make laws that are good for the people they serve. Klein said different communities in Ohio have different needs, and there's a reason why framers of the state constitution included the home rule provision.
"They put it in there so they could empower cities," Klein said.
Columbus is joined on the lawsuit by cities of Athens, Barberton, Bexley, Cincinnati, Cleveland, Dublin, Gahanna, Grandview Heights, Heath, Hilliard, Kent, North Ridgeville, Oberlin, Oxford, Reynoldsburg, Springfield, Toledo, Upper Arlington, Whitehall, and Worthington.
Dominic Binkley, a spokesperson for Attorney General Dave Yost, didn't say whether the state would appeal the decision.
"We are reviewing the decision and will consult with our clients regarding next steps," Binkley said.
