Columbus pledges to sue Ohio so it can keep its flavored tobacco ban

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COLUMBUS, Ohio (WCMH) – The City of Columbus is drafting a lawsuit against Ohio for the legislature’s recent decision to ban cities from regulating tobacco sales, continuing a long battle between state and city government officials.

Last week, the Ohio Senate followed the House's lead and voted to override Gov. Mike DeWine’s veto on a provision prohibiting local governments from enacting regulations on the sale of tobacco, including banning flavored tobacco products. Starting on April 24, when the law goes into effect, cities with flavored tobacco bans will no longer be able to enforce the legislation. Columbus, Grandview Heights, Worthington and Bexley will be among the cities barred from enforcing their flavored tobacco bans.

The decision comes after back and forth between the legislature and DeWine. About a year ago, DeWine vetoed a bill that would prohibit local governments from banning tobacco and e-cigarette sales. Lawmakers included the same provision in the state budget this past summer, which DeWine vetoed again. In December, the House voted to override DeWine’s veto. The Senate concurred with that decision last week. 

City Attorney Zach Klein is now looking to file a lawsuit in response to the veto override. 

“The governor was right to veto legislation undermining local efforts to reduce tobacco use and long-term adverse health effects, especially among young people,” Klein said. “Now that Republican lawmakers have chosen to override the governor’s veto, the City is weighing all options, which certainly includes filing a lawsuit challenging this legislative overreach.”

Klein said his office must defend the Ohio Constitution’s home rule authority, which has existed for more than 110 years. Municipal home rule grants cities the constitutional right to establish laws; as long as a rule or regulation doesn’t interfere with the laws in the Ohio Revised Code, cities have the right to make their own policies.  

"The Statehouse arbitrarily decided that, for the first time in Ohio history, local communities shouldn't have the ability to decide what's best for the health of our communities," Bexley Mayor Ben Kessler said. "This is an unconstitutional overreach and one that warrants a robust legal challenge."

Multiple central Ohio bans were prompted after Columbus health and city officials deemed tobacco use in the city a public health issue, claiming tobacco companies prey on racial minorities and flavored products are targeted at minors.

According to the FDA, more than 2 million middle and high school students in 2023 reported the current use of e-cigarettes, and almost 9 out of 10 reported using flavored products. The American Lung Association claims some tobacco products are used at a higher rate in minority populations, such as methanol cigarettes in the African American community. African American smokers use methanol cigarettes at more than three times the rate of white people, according to the association. 

Dustin Holfinger, the state government relations director for the American Heart Association, said Ohio has the fourth-highest smoking rate in the country. 

“Every year, big tobacco spends more than $9 billion nationwide and in excess of $400 million to specifically target our children here in Ohio,” Holfinger said. “This action [last] week by the legislature sends the message that communities can’t be trusted to do what’s right for the health of their citizens.”

Opponents of the ban cite concerns over the ban harming small businesses, as well as making flavored tobacco products harder to obtain for legal adults. Multiple businesses that sell tobacco products in cities with tobacco bans have told NBC4 they were negatively affected by the bans, with some businesses closing or moving states.

After the Senate’s veto override, Rob McColley (R-Napoleon) argued that allowing local governments to enact their own regulations would create an unreasonable burden on business owners — those who operate in multiple jurisdictions would have to keep track of a network of different restrictions. 

The city attorney’s office said there is no timeline as to when the lawsuit will be filed but that it will be filed before the law barring cities from enacting their own tobacco legislation takes effect. This gives the city attorney's office approximately 85 days.