The e-cigarettes’ flavors ranged from “strawmelon” to “blueberry raspberry-gami” and virtually none of them were legal when they were sold in tobacco stores around the state.
But as lawyers for tobacco retailers argued to the Ohio Supreme Court on Tuesday, only the federal government gets to enforce the rules on tobacco marketing. The state’s effort to do so, they say, is unconstitutional.
The lawsuit is one of two major ongoing legal battles from Ohio’s government – or parts of it, at least – against flavored tobacco and nicotine products, which are seen as a lure for teenagers and young adults into an addictive habit.
Through both cases, the court will set the limits on the power of Ohio and its cities to cut down on what they see as a looming nicotine and tobacco addiction crisis in the making.
While adult cigarette rates have plunged, nearly 1 in 5 Ohio high schoolers say they’ve used an e-cigarette within the past 30 days. Tobacco use remains a leading cause of preventable death in the U.S.
The question before the Ohio Supreme Court Tuesday was whether state officials can use state consumer protection laws to target sales of flavored vapes and e-cigarettes, all of which are illegal under federal tobacco laws. At the time of the lawsuit, the FDA had never approved a flavored tobacco product besides menthol. (In a first in May 2026, the FDA approved four flavored vape devices made by Glas.)
Despite the federal ban on non-FDA-approved tobacco products, enforcement is notoriously lax, said Marisa Katz, an attorney with the Public Health Law Center, which has backed the Ohio attorney general’s office. That puts the workload on the state.
“They can’t monitor every product sale across the country,” she said of the FDA.
“And that’s why this case is so important because states are best positioned to respond to local problems more quickly than federal agencies are.”
Then-Ohio Attorney General Dave Yost in 2024 filed civil lawsuits against Orrville Tobacco in Wayne County, Central Tobacco in Delaware County, and Elev8 Smoke Shop in Cincinnati for selling illegal vapes. Elev8 sits half a mile from a local high school.
Appellate courts have split on the issue of whether federal tobacco laws preclude state officials from intervening as an enforcer.
Mixed signals
The justices offered mixed signals Tuesday on how they might rule, speaking only in the context of questions to both sides’ attorneys. Justice Jennifer Brunner, the court’s lone Democrat, said that “consumers are being duped” when stores stock illegal products on the shelves and imply that they’re legal.
Justice Pat DeWine, a Republican, at one point suggested that the attorney general’s office was distancing itself from some elements of its original lawsuit. But at others, he seemed to agree with Brunner.
“Isn’t it reasonable to think that someone who walks into a store and picks it up off a shelf thinks it’s a legal product?” he said to a lawyer representing the tobacco sellers.
Two facts drive the case, said Sam Peterson, a lawyer for now-Ohio Attorney General Andrew Wilson. The flavored e-cigarettes being sold are illegal, and the state has the legal right to prohibit the sale of flavored e-cigarettes.
James Fraser, an attorney for Central Tobacco who specializes in tobacco and e-cigarette cases, said to justices that the state is conflating marketing approvals and product safety.
“They say, if you put a sign next to the product in the store that says, ‘these products are illegal,’ then the state seems to be saying there is no problem,” he said.
Ohio cities ban flavored tobacco
Despite the prohibition, sales of thousands of models of flavored, disposable vapes have exploded in the U.S., according to both Katz and the findings of a U.S. Government Accountability Office study.
Gov. Mike DeWine (father of Pat DeWine, the justice) has fought for stricter tobacco laws for much of his four decades in state and federal politics. As governor, he has tried and failed over two terms to convince lawmakers to ban flavored tobacco sales.
Facing refusal from Republican state lawmakers, Democratic-controlled cities large and small in Ohio (especially in the Columbus area) have stepped in. Their bans vary, sometimes including flavors of Zyns, an increasingly popular oral nicotine pouch. The cities also enacted their own enforcement schemes to uphold these laws, plus Ohio’s 21-and-up tobacco law.
Republican state lawmakers responded with a “preemption” law, which is essentially the state’s way of claiming a policy arena for itself and forbidding cities from passing stiffer regulations of their own. They managed to secure the supermajority required to override a veto from Gov. DeWine.
Cities have challenged the law, citing a home rule provision in the state constitution that grants them political autonomy. Oral arguments were held in June.
The Ohio Supreme Court is now poised to rule on both cases.