When Ohio lawmakers barred cities from banning flavored tobacco sales, they made it illegal for cities to have tobacco laws that were more strict than state regulations.
While most of the focus has been on the effect on retail sales, another consequence is set to disrupt how communities enforce tobacco laws starting in April.
Cities won't be allowed to license tobacco retailers, check to see if they're selling to minors or punish cities if they actually sell to minors.
When Columbus City Council passed a ban on the sale of flavored tobacco products at the end of 2022, it wasn’t long before Republican state lawmakers started working out a way to wrangle back control.
Within days, the first of several attempts at eliminating the bans went before a Republican-controlled Senate Ways and Means Committee. Democrats complained they were stripping communities of local control and ignoring the community health benefits of a ban as more cities like Cincinnati considered their own bans.
When that initial effort failed and stalled, though, it was because Republicans couldn’t agree. Some did want to see a statewide ban on flavored vapes, but they couldn’t agree on what to do about menthol.
For a few months, lawmakers went back and forth before giving up the idea and going with a blanket elimination on bans that was tucked into the state budget.
There was some uncertainty about the fate of the law after Gov. Mike DeWine vetoed the ban, but lawmakers overrode the veto.
Columbus’ store shelves will still be empty of flavored tobacco until April 24 when the law takes effect.
Columbus Public Health Commissioner Dr. Mysheika Roberts said once the law does take effect, it will fundamentally change how officials enforce any tobacco law, meaning they won't be able to at all.
“Their veto prohibits local governments from regulating the sale of not only flavored tobacco, but tobacco products to those under the age of 21. So what that means is local health departments can no longer do compliance checks like we've been doing," Roberts said.
Columbus Public Health made about 1,954 compliance checks at the 700 tobacco retailers in the city between last February and this February. That’s when they send in a person under the age of 21 to try to buy nicotine products.
“The noncompliance rate is just about 25%, meaning 25% of our tobacco retailers are selling to underage minors,” she said.
City Attorney Zach Klein said the city licenses tobacco retailers to hold them accountable.
“If there's a violation, there's administrative fines that could ultimately lead to perhaps having your license pulled so that you'd be unable to sell tobacco," Klein said.
Those fines escalate from $1,000 to $10,000 for a third offense. The money is used to run tobacco prevention programs.
“Under the new law, that all goes away,” Klein said.
Police would be tasked with the job and there would be no way for the city to prevent problem stores from selling tobacco after repeated offenses, Klein said.
“So, I think the state is really getting it wrong here, by asking law enforcement to do something that is already successfully being done in the city of Columbus by our Department of Public Health,” Klein said.
Klein said the city will do one of two things. “It means creating a new division and trying to hire police officers just to focus on tobacco sales, or given the realities of the challenges of recruiting and hiring, it just means that it probably will go little enforced or not enforced at all.”
Klein also said the police should be focusing on crime and not worrying about retail compliance.
Keary McCarthy, Executive Director of the Ohio Mayors Alliance, said the law rewrites the entire enforcement process, without giving cities any resources to make the changes so compliance checks can continue.
“And, that's important because absent local compliance checks, there's really no state-level enforcement mechanism to ensure that minors are not being sold tobacco products,” McCarthy said.
Eric Wolf, enforcement commander of the Ohio Investigative Unit at the Ohio State Highway Patrol, said the division made 2,161 checks in 2023, only about 200 more than in Columbus in a year.
And they don’t make the compliance checks to levy any consequences against the retailers. The Ohio Department of Health and the state's Department of Mental Health and Addiction Services pay officials to do the checks in order to collect data, an effort Wolf said has grown lately.
Wolf added the division doesn’t dedicate money to the effort in its budget.
“It's just kind of as needed. So our agents are out looking for alcohol violations, food stamp fraud, tobacco violations and everything that goes along with it, the gambling, the drugs, the weapons. And so all of that is just based on complaints or requests for assistance as they come in," Wolf said.
McCarthy and Klein said the state’s constitution gives cities the right to regulate tobacco retailers in their cities. Klein said he’s prepared to fight the issue in court.
However, he may only have to fight for the flavor ban.
Rep. Bill Seitz (R-Cincinnati) supported the law for the flavored tobacco provision, but said what lawmakers did with licensing regulations wasn’t planned.
“I don't think anybody really intended to upset any effort by the locals to assist the state in enforcing the current law that says you have to be 21 to buy any of these products. The current enforcement at the state level is rather spotty and rather inadequate in my opinion," Seitz said.
Seitz also said lawmakers won’t be able to consider changing it until they’re all in session again in April. He said they’re currently busy campaigning for the upcoming primary. Lawmakers might amend the language or add it to another bill that seeks new statewide penalties for non-compliant retailers.
Seitz said it would be much harder to get it done if lawmakers allocated money toward improving enforcement efforts.
In the meantime, Dr. Roberts said Columbus Public Health will have to prepare to end their operations to follow the law.
Dr. Roberts said she is disappointed about every aspect of the new law and believes the city should be able to make decisions to protect the health of the community.
“I would just love the opportunity to continue to be able to do that, with minimal restrictions from politicians,” Dr. Roberts said.