The Oregon State Legislature recently passed Senate Bill 587 ("SB 587" or "State Bill"), which implements a new tobacco and nicotine licensing program. The State Act authorizes the "Administrative Agency of Local Public Health Authorities" to issue statutes to strengthen the standards for regulating tobacco products and inhalant delivery systems to achieve public health and safety-related purposes. "Local public health authority" includes county management agencies. (See ORS 431.03). Although the effective date of the bill is January 1, 2022, local authorities can draft and issue laws before that date, as long as the effective date is not earlier than January 1, 2022.

On November 2, 2021, the County Commissioner's Commission, the local public health authority of Washington County, issued Decree No. 878 ("County Act"). The county ordinance is designed to establish strengthened regulations for tobacco products in Washington County. However, the definition used by the County Regulations is different from the existing statewide definitions, leading many commenters to speculate that the widely applicable ban is prohibiting the sale of inhalable cannabis at recreational cannabis establishments licensed by the Oregon Alcohol and Cannabis Commission (OLCC) product.

The county magistrate did not write well. On the surface, just reading the language and definitions of the county ordinance, the concerns of cannabis industry advocates and commentators are understandable. However, when combined with the state law, the statewide definition of "inhalation delivery system", and the restrictions on the regulation of local cannabis companies in Act 91, county laws are unlikely to stand up to justice as banning inhalable cannabis. Review.

The state bill specifically exempts nicotine-free inhalation delivery systems sold in OLCC-licensed retail cannabis establishments.

The state bill introduces new licensing requirements for tobacco product retail and inhalation delivery systems in Oregon. (See Section 3, SB 587). However, in the next section, the state bill exempts OLCC licensed retailers from the new licensing requirements unless the retailer sells inhalation delivery systems containing nicotine (restriction principle). Section 4 clearly states

Despite the provisions of Section 3 of this 2021 Act, Sections 1 to 14 of this 2021 Act do not apply to medical cannabis dispensaries registered under ORS 475B.858 (Establishment of Recreational Cannabis Places) or in medical cannabis dispensaries registered under ORS 475B.105 The place where the permit is issued, unless the person retails an inhalation delivery system containing nicotine.

Therefore, the existence of nicotine is a key factor in whether the licensing system of the state law is applicable to OLCC retailers. OLCC retailers who are not currently engaged in the sale of inhalation delivery systems containing nicotine are not subject to the requirements of the state law.

The regulation's definition of tobacco products and inhalant delivery systems is inaccurate.

County ordinances are drafted and promulgated in accordance with the powers granted by the State Act. Unfortunately, instead of adopting the existing statewide definition, the county decree created a new and confusing definition of "inhalation delivery system."

ORS 431A.175(1)(a)(A) defines "inhalation drug delivery system" as:

(i) A device that can be used to deliver nicotine or cannabinoids in the form of a vapor or aerosol to a person inhaled from the device; or

(ii) The components of the device described in this paragraph or substances sold in any form for the purpose of vaporization or atomization by the device described in this paragraph, regardless of whether the components or substances are sold separately or not.

And continue to explicitly exclude "tobacco products" from the definition of "inhalation delivery system", in ORS 431A.175(1)(a)(B) it is pointed out that "'inhalation delivery system' does not include (b) Tobacco products".

ORS 431A.175(1)(b) defines "tobacco products" as:

(A) bidis, cigars, cheroots, stogies, periques, granular, plug cut, roll cut, pre-ground and other smoking tobacco, snuff, snuff powder, Cavendish, stuffed and twisted tobacco, fine cut and others Chewing tobacco, shorts, crumbs, cuts, cuttings and sweeps of tobacco and other forms of tobacco that are prepared in such a way that the tobacco is suitable for chewing or smoking in a pipe or other place, or suitable for both chewing and smoking;

(i) Can be used to deliver tobacco products to people who use the device

(ii) Not approved by the U.S. Food and Drug Administration as a smoking cessation product or any other therapeutic purpose, if the product is only marketed and sold for the approved purpose

Therefore, the existing statewide definition recognizes the difference between tobacco and inhalation delivery systems. Therefore, the inhalation delivery system may be a tobacco product, but according to the definition, it is not independent of the substance it is used for delivery. Tobacco products. In other words, the status of the inhalant delivery system as a tobacco product depends on whether the device is used to deliver tobacco. Under Oregon law, cannabis products designed to be administered through an inhaled drug delivery system are not classified as tobacco products.

However, the county ordinance redefines "tobacco products" and "inhalation delivery systems" so that all inhalation delivery systems are tobacco products, regardless of whether tobacco or nicotine is present. These overly broad definitions of tobacco products in the county regulations include any inhalation delivery system, and any substance administered through the inhalation delivery system is defined as a tobacco product.

The county ordinance defines "tobacco products" in Chapter 2, Definition 2.20 (F) as:

Tobacco products. (1) Any product that contains tobacco or nicotine, is made from or made from tobacco or nicotine, is intended for human consumption or may be consumed, whether inhaled, absorbed or ingested by any other means, including but not limited to cigarettes , Cigars, pipe tobacco, chewing tobacco, snuff or snuff; (2) any inhalation delivery system, and any substance that may be atomized or vaporized by the device, regardless of whether the substance contains tobacco or nicotine; (3) (1) Or any component, part or accessory of (2), whether or not it contains tobacco or nicotine, including but not limited to filters, paper rolls, blunt or hemp wraps, hookahs, and pipes. (Emphasize).

In Chapter 2.20(C), the county ordinance defines an inhaled drug delivery system as:

A device that can be used to deliver nicotine or cannabinoids in the form of vapor or aerosol to an individual who inhales from the device, or components of such devices, or substances sold in any form for vaporization or atomization, such devices, regardless of Whether its components or substances are sold separately or not. Inhalant delivery systems include, but are not limited to, e-cigarettes, e-cigarettes, e-pipes, e-cigarette pens, or e-water pipes.

The county decree also targeted consumers of all ages, in the 2.30 B "Prohibition", a total ban on "flavored tobacco products" and "flavored synthetic nicotine products":

No one may sell, offer to sell or otherwise distribute any flavored tobacco products or flavored synthetic nicotine products.

Although the county regulations do not provide a clear definition of "flavored tobacco products", Chapter 2.20(B) defines "flavored products" as "... (a) any synthetic nicotine product or tobacco product that contains a taste or smell, except for tobacco The taste or smell...". Because “flavored products” include tobacco products that contain flavors or odors other than tobacco, and the county’s definition of “tobacco products” includes all inhalation delivery systems, regardless of their content, inhalants containing cannabinoid products (ie, odors) Conveyor systems or flavors other than tobacco) are "flavored tobacco products" that are prohibited by county regulations. Therefore, the county decree expressly prohibits inhalable cannabis products.

Although the language of the county ordinance is simple and clear, attempts to implement the county ordinance as a complete ban on inhalable cannabis products are unlikely to succeed. First, the state bill grants Washington County the power to issue a county order, authorizing local supervision of nicotine, tobacco, and inhalation delivery systems, because these terms are defined by regulations and are referenced by state bills. The state bill does not grant local powers to redefine existing statutory provisions or add entire product categories to the state bill. Importantly, the state bill expressly exempts OLCC retailers that do not sell inhalation delivery systems containing nicotine from complying with the new licensing requirements under the state bill. Therefore, if Washington County attempts to enforce the ordinance against inhalable cannabis products based on the power granted by SB 587, the county ordinance will fail.

The regulations set unreasonable restrictions on Oregon cannabis companies that do not meet the requirements of Oregon's Measure 91 procedure.

Even though the Washington County Ordinance is deemed to have effectively exercised the powers granted by the state Bi

ll, the "County Regulations" still cannot meet the basic procedural requirements of Article 91 measures for local control of cannabis companies. Article 91 measures codified in ORS 475B allow counties and cities to impose time, location, and method restrictions on the following persons ("TPM restrictions") as long as these regulations meet the "reasonableness" criteria, they can operate cannabis businesses.

Cities and counties can adopt reasonable time, place, and methods for the nuisance of companies that sell cannabis to consumers. If the city or county clearly determines that the company will cause adverse effects.

ORS 475B lists examples of TPM restrictions to which we will apply the "reasonableness" standard:

(Licensed) cannabis producers...reasonable conditions for the manner in which cannabis can be produced;

(Licensed) cannabis processors...reasonable conditions for the manner in which cannabis can be processed;

(Licensed) cannabis wholesalers...reasonable conditions for the way in which cannabis can be sold wholesale;

(Licensed) cannabis retailers...reasonable conditions for the way in which cannabis items can be sold;

Reasonable restrictions on the time that the (permitted) premises... can operate;

Reasonable requirements related to public access to (permitted) premises; and

Reasonable restrictions on where the (permitted) place...may be located.

Although localities have been given the flexibility to formulate tailor-made regulations for companies within their jurisdiction, TPM restrictions have never reached the level of completely prohibiting the entire category of products sold by OLCC-licensed retailers. In addition, when formulating county regulations, Washington County did not refer to Measure 91 or ORS 475B, nor did it make any investigation results on the specific adverse effects of inhalable cannabis products. This is the threshold requirement for determining the reasonableness of any TPM restrictions. Instead, the findings of the County Regulations only deal with tobacco use and the negative effects of selling tobacco and nicotine products to individuals under the age of 21.

Finally, county regulations are unlikely to pass TPM restrictions under Article 91 measures, because Article 91 measures also contain statutory interpretation rules. Article 58 clearly stipulates that Article 91 "should be superior to and completely replace and replace any and all municipal charter promulgations or local ordinances that are inconsistent with it." Therefore, the county ordinance does not meet the requirements of the reasonable TPM restrictions under Measure 91 or ORS 475B.

Improper drafting of county regulations has caused confusion and uncertainty. The authorization of the county ordinance comes from SB 587, which clearly stipulates that OLCC-licensed retailers are not regulated as long as they do not sell nicotine products. In addition, if the intent of the county ordinance is to completely ban inhalable cannabis products, then the county ordinance has not made any necessary investigation results to meet the requirements of Article 91. If Washington County tries to enforce county regulations on OLCC-licensed retailers, the ban is unlikely to continue. Before the effective date of the county ordinance, Washington County can and should repeal or modify the wording of the ordinance in order to properly apply the restriction principles to OLCC-licensed cannabis retail establishments under the state law.

Disclaimer: Due to the general nature of this update, the information provided here may not be applicable in all situations, and action should not be taken without specific legal advice based on specific circumstances.

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