A Washington County judge announced Tuesday that the flavored tobacco ban, opposed by a majority of voters in the county, has not yet gone into effect, saying the county is not prepared to enforce it anyway.

County health officials said that wasn't the case, but acknowledged that they must now allow the sale of flavored products that don't appeal to teens.

This is just the latest in a series of setbacks in the county's first ban on flavored tobacco products.

The original ban was enforced by the Washington County Commission in November 2021 and is scheduled to begin in January of this year.

But opponents of the ban, spearheaded by Plaid Pantry CEO Jonathan Polonsky, gathered enough signatures to put it on the ballot and give voters a decision in May.

Supporters of the ban spent more than $1 million defending it, and Washington County voters overwhelmingly chose to keep the ban.

In February, before that vote, several Washington County businesses filed lawsuits challenging the ordinance. Serenity Vapors, King's Hookah Lounge and Torched Illusions, represented by attorney Tony Aiello, argue in the lawsuit that they are legitimate businesses that will be unfairly harmed by the county's ordinance.

On Tuesday, Washington County Circuit Judge Andrew Irwin agreed to suspend the pending injunction. According to Irving, the county's argument for keeping the ban in place while the law is challenged is not "convincing" because he said the county's attorneys have said there are zero plans to enforce the ban "for the foreseeable future."

On the other hand, Owen reasoned that if the law was followed, the business would be immediately and irreparably harmed.

In his injunction, Owen wrote: "Defendants argue that the public's interest in Act 878 is overwhelmingly higher than that of plaintiffs. But defendants admit that they had no plans to advance the public's interest as they did not anticipate that in the foreseeable future. implementation of this regulation in the future.”

County health spokeswoman Mary Sawyer explained, "Enforcement will begin with state inspections of tobacco retail licensing laws. The state inspects businesses annually to ensure they are licensed and comply with new state laws, and if inspectors find Washington Businesses in the county are selling flavored products and they will notify us."

Upon notification, the county government will first educate businesses about the flavored product laws, and issue tickets only if businesses fail to comply.

"None of that happened because the state just started checking this summer and they haven't recommended any businesses to us," Sawyer said.

The county has filed a motion to dismiss the complaint. But as of now, Washington County has flavored tobacco and vaping products.

Jordan Schwartz is the owner of Serenity Vapors, one of the plaintiffs in the case, which has three Washington County branches. Schwartz claims his company has helped thousands of people quit smoking.

Now, he said, customers come in and tell him, "I think I'm going to go back to cigarettes, and that's what they're forcing us to do."

Serenity Vapors sells flavored e-liquids and vaping devices, according to Schwartz.

"Eighty percent of our business comes from some kind of flavored product," he said.

"We have hundreds of flavors," Schwartz continued. "We have about four tobacco flavours, which is not a very popular segment."

Jamie Dunphy, a spokeswoman for the American Cancer Society's Cancer Action Network, has a different take on flavored nicotine products.

"Data show that less than 25 percent of adults who use any type of tobacco product, including e-cigarettes, use any form of flavored product," Dunphy said. "But the vast majority of children who use these products say they only use flavored products."

Schwartz said he doesn't sell to minors and only allows people 21 and older into his store.

"In every county in the country, it's illegal to sell these products to anyone under the age of 21, and anyone who breaks the law should be prosecuted," he said.

Schwartz said he believes there should be some kind of limit and wants to be part of the conversation about how to do that. But, he said, "banning it 100 percent is definitely not the right way to go."

Dunphy doesn't have much sympathy for business owners who might be out of luck if the ban goes into effect.

"They work in an industry specifically designed to make products that are not regulated by any government entity, that taste like candy, are decorated like toys, and that explicitly appeal to children," he said.

While the number of young people smoking traditional cigarettes is declining, vaping is a common entry point for nicotine use among children. According to the Centers for Disease Control and Prevention, in 2021, 80.2% of high school and middle school students who use e-cigarettes and 74.6% of middle school students have used flavored products in the past 30 days.

E-liquids contain more nicotine than cigarettes and are easier to hide from parents, Dunphy said.

"The rumour from the school is that it's worse than ever," he added. "Beaverton High School had to remove the door to the bathroom cubicle because a lot of kids were using vaping products in the bathroom between classes."