Smoke Shop sues Prior Lake over a law banning flavored vaping products

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The only tobacco store in Prior Lake is suing the city over an order banning the sale of flavored vaping products, alleging the ban is unconstitutional.

Prior Lake Tobacco and Vape opened in 2020, but flavored vaping products were banned by the city within a year, said attorney V. John Ella, who represents the store.

“My client is very anxious because he is losing money,” Ella said. “Without vaping, in today’s market, you simply cannot make a profit in this business.”

The ordinance prohibits the sale of flavored vaping products, except menthol, and does not provide an exception for sales to customers over the age of 21. It entered into force on August 15, triggering the trial.

Monte Mills, the town’s attorney, declined to comment. But court documents show the city has requested that three of the four charges be dismissed.

In the motion to dismiss these charges, the city argues that the ordinance relates to a “legitimate government interest” and builds on existing Minnesota laws to help smokers quit, regulate vaping devices and protect young adults from the negative effects of vaping.

The lawsuit comes after a federal law in December 2019 banning the sale of tobacco to those under the age of 21. By that time, more than 50 cities in Minnesota had already enacted such a ban. A similar state ban went into effect in August 2020.

But Ella said most cities with orders restricting sales of flavored tobacco make allowances for a “21-plus-year-old store” like her client’s – a nondescript mall store with a black awning and neon signs in window – can only sell vaping products to adults.

Ella said the city’s stated goal of protecting young adults from starting to use vaping products could be “fully achieved” with an exemption allowing the sale of flavored vaping products in more than 21 stores. He believes his client’s business is treated differently from similar businesses, including liquor stores that sell flavored liquor to more than 21 customers. Her client is being punished despite having no history of selling to minors, Ella said.

“Our argument is that it’s just not fair,” he said.

Emily Anderson, policy director for the Association for Nonsmokers-Minnesota, said her group supports Prior Lake’s efforts to ban the sale of flavored vaping products, but believes cities should ban traditional tobacco products as well – like cigarettes and cigars – with aromas. “It will advance racial equity, keep children healthy and save the state a lot of money,” she said.

Eight cities in Minnesota have taken this more restrictive route: Bloomington, Golden Valley, Arden Hills, Lauderdale, Lilydale, Edina, Mendota Heights and Shoreview. Menthol products are included in these prohibitions.

Edina is already facing a lawsuit over her ordinance.

In June 2020, tobacco company RJ Reynolds and two convenience stores sued Edina, challenging the constitutionality of her order. The city decided to dismiss the lawsuit and the court agreed, but in September 2020, the plaintiffs appealed. The United States Court of Appeals has yet to rule in this case.

Anderson said Prior Lake’s order focused on flavored vaping products is a little different from the one at issue at Edina. Federal courts have upheld orders like Edina’s that cover all flavored products, she said, as they are effective in preventing tobacco use.

She said the comparisons to liquor stores and liquor stores don’t make sense because they sell different products; tobacco kills more of its users.

In Prior Lake, Ella said her client’s store had been still open since signing a five-year lease, but was not doing well. According to court documents, the store will close if the order remains in effect.

“You can say whatever you want about vaping – it’s otherwise a legal product,” Ella said. “He’s just trying to run a business.”

Erin Adler • 612-673-1781


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