342 May 1, 2024 No. 280

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

Jordan SCHWARTZ, an individual; 

Jonathan Moran, an individual; Serenity Vapors, LLC, 

a domestic limited liability company; 

Torched Illusions, LLC,

 a domestic limited liability company; 

Belal Yahya, an individual; 

and Hookah Cafe, LLC, dba King’s Hookah Lounge, 

a domestic limited liability company,

Plaintiffs-Respondents,

v.

WASHINGTON COUNTY, 

a political subdivision of the State of Oregon,

Defendant-Appellant.

Washington County Circuit Court

22CV04836; A179834

Andrew Erwin, Judge.

Argued and submitted March 28, 2024.

John Mansfield argued the cause and filed the brief for 

appellant.

Tony L. Aiello, Jr., argued the cause for respondents. Also 

on the brief was Tyler Smith & Associates, P.C.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Philip Thoennes, Assistant Attorney 

General, filed the brief amicus curiae for State of Oregon.

Steven C. Berman, Lydia Anderson-Dana, Stoll Stoll 

Berne Lokting & Shlachter P.C., and Dennis A. Henigan 

filed the brief amici curiae for African American Tobacco 

Control Leadership Council, American Cancer Society 

Cancer Action Network, American Heart Association, 

American Lung Association, American Medical Association, 

Campaign for Tobacco-Free Kids, Cascade AIDS Project, 

Kaiser Permanente, Oregon Coalition of Local Health 

Officials, Oregon Medical Association, Oregon Pediatric 
Cite as 332 Or App 342 (2024) 343

Society, Parents Against Vaping e-cigarettes, Truth Initiative,

and Upstream Public Health.

Before Tookey, Presiding Judge, Egan, Judge, and DeVore,

Senior Judge.

TOOKEY, P. J.

Reversed and remanded.
344 Schwartz v. Washington County

TOOKEY, P. J.

Defendant Washington County appeals a judgment 

permanently enjoining it from enforcing Washington County 

Ordinance (WCO) 878, which bans the sale and distribution 

of flavored tobacco and flavored synthetic nicotine products 

in Washington County. The trial court enjoined WCO 878 

because it concluded that WCO 878 is preempted by Oregon’s 

statewide scheme for tobacco retail licensure (TRL), ORS 

431A.190 to 431A.220.1 On appeal, in its sole assignment of 

error, defendant contends that the trial court erred in ruling 

that WCO 878 is preempted by Oregon’s scheme for TRL.2

We conclude that WCO 878 is not preempted by 

Oregon’s scheme for TRL. Therefore, we reverse and remand.

I. BACKGROUND

Prior to turning to a description of this litigation 

and an explanation of why Oregon’s scheme for TRL does not 

preempt WCO 878, we provide an overview of that scheme, 

Washington County’s authority as a “home rule” county, and 

WCO 878.

A. Senate Bill 587 (2021) and TRL in Oregon

In 2021, the Legislative Assembly passed Senate 

Bill (SB) 587, which, for the first time, created a statewide 

scheme for TRL in Oregon. Oregon’s scheme for TRL is codified at ORS 431A.190 to 431A.220.

1 ORS 431A.190 to 431A.220 are the codification of Senate Bill (SB) 587 

(2021), which was enacted as Oregon Laws 2021, chapter 586. As discussed below, 

SB 587 created Oregon’s scheme for TRL. For the most part, the trial court opinion and the parties’ briefing cite sections of SB 587. In this opinion, we refer to the 

relevant provisions of the Oregon Revised Statutes.

2 We note that amicus curiae the State of Oregon has filed a brief in support 

of defendant, in which it contends that WCO 878 is not preempted. 

We further note that amici curiae African American Tobacco Control 

Leadership Council, American Cancer Society Cancer Action Network, American 

Heart Association, American Lung Association, American Medical Association, 

Campaign for Tobacco-Free Kids, Cascade AIDS Project, Kaiser Permanente, 

Oregon Coalition of Local Health Officials, Oregon Medical Association, Oregon 

Pediatric Society, Parents Against Vaping e-Cigarettes, Truth Initiative, and 

Upstream Public Health, have filed a brief in support of defendant, in which they 

contend that WCO 878 is not preempted and argue that a ban on the sale of 

flavored tobacco and flavored synthetic nicotine products provides residents of 

Washington County greater protection against the “harms of flavored tobacco 

and nicotine products” than the protection offered by Oregon’s scheme for TRL.
Cite as 332 Or App 342 (2024) 345

The purpose of SB 587 was “to improve enforcement 

of local ordinances and rules, state laws and rules and federal 

laws and regulations that govern the retail sale of tobacco 

products[3] and inhalant delivery systems.”4 ORS 431A.192. 

It aimed to do so by requiring a license or other authorization for a retailer to sell tobacco products and inhalant 

delivery systems. See Audio Recording, Senate Committee 

on Health Care, SB 587, Mar 1, 2021, at 00:04:50 (comments 

of Rep Kathleen Taylor), https://olis.oregonlegislature.gov 

(accessed Mar 3, 2024) (explaining that “[w]ithout requiring 

a [tobacco retailer] to obtain a license, *** enforcement of 

our existing laws is difficult”).

At the time that SB 587 was enacted, Oregon was in 

the minority of states that did not require tobacco retailers 

to hold a license to sell tobacco products, and tobacco was 

3 ORS 431A.175(1)(b) defines “tobacco products” as:

“(A) Bidis, cigars, cheroots, stogies, periques, granulated, plug cut, 

crimp cut, ready rubbed and other smoking tobacco, snuff, snuff flour, cavendish, plug and twist tobacco, fine-cut and other chewing tobaccos, shorts, 

refuse scraps, clippings, cuttings and sweepings of tobacco and other forms of 

tobacco, prepared in a manner that makes the tobacco suitable for chewing 

or smoking in a pipe or otherwise, or for both chewing and smoking;

“(B) Cigarettes as defined in ORS 323.010 (1); or

“(C) A device that:

“(i) Can be used to deliver tobacco products to a person using the device; 

and

“(ii) Has not been approved by the United States Food and Drug 

Administration for sale as a tobacco cessation product or for any other therapeutic purpose, if the product is marketed and sold solely for the approved 

purpose.”

See ORS 431A.190(5) (providing that for purposes of ORS 431A.190 to 

431A.216, “tobacco products” has the meaning given that term in ORS 431A.175); 

ORS 431A.218(1)(d) (providing that for purposes of ORS 431A.218, “tobacco products” has the meaning given that term in ORS 431A.175).

4 ORS 431A.175(1)(a)(A) defines “inhalant delivery system,” in part, as:

“(i) A device that can be used to deliver nicotine or cannabinoids in the 

form of a vapor or aerosol to a person inhaling from the device; or

“(ii) A component of a device described in this subparagraph or a substance in any form sold for the purpose of being vaporized or aerosolized by a 

device described in this subparagraph, whether the component or substance 

is sold separately or is not sold separately.”

See ORS 431A.190(2) (providing that for purposes of ORS 431A.190 to 431A.216, 

“inhalant delivery system” has the meaning given that term in ORS 431A.175); 

ORS 431A.218(1)(b) (providing that for purposes of ORS 431A.218, “inhalant 

delivery system” has the meaning given that term in ORS 431A.175).
346 Schwartz v. Washington County

the only age-restricted product in Oregon that a retailer 

did not need a license to sell. Testimony, Senate Committee 

on Health Care, SB 587, Mar 1, 2021 (statement of Rachel 

Banks, Public Health Director, Oregon Health Authority);5

Audio Recording, Senate Committee on Health Care, SB 587, 

Mar 1, 2021, at 00:04:15 (comments of Rep Kathleen Taylor), 

https://olis.oregonlegislature.gov (accessed Mar 3, 2024).

Nevertheless, several political subdivisions in Oregon

had enacted ordinances requiring retailers to hold a license 

or other authorization issued by the political subdivision in 

order to sell tobacco products, although Washington County 

did not have such a licensure or authorization scheme in 

place. See, e.g., Testimony, Senate Committee on Health Care, 

SB 587, Mar 1, 2021 (statement of Rachel Banks) (noting 

that “[c]ounties such as Multnomah, Clatsop and Klamath 

are enforcing strong tobacco retail licenses”). The result was 

that a “patchwork approach of local licensing programs” 

was starting to develop throughout Oregon. See Testimony, 

Senate Committee on Health Care, SB 587, Mar 1, 2021 

(statement of Shawn Miller, Northwest Grocery Association) 

(explaining that the Northwest Grocery Association supported SB 587 because it “has always been concerned with 

a patchwork approach of local licensing programs and would 

rather have a coordinated state-wide approach versus additional Counties adopting their own programs”).

During the discussions on SB 587, an issue arose 

regarding what to do about the TRL programs in those political subdivisions that already had their own TRL programs 

if the state was to begin issuing its own licenses for retail 

sales under SB 587. Senator Tim Knopp explained that 

some of the local TRL programs may “go further than” the 

state TRL scheme likely would and recognized that some 

5 The legislative history of SB 587 contains conflicting information regarding the precise number of states that did not have a statewide TRL program at 

the time SB 587 was under consideration by the Legislative Assembly, but the 

majority did already have a statewide licensure program in place. See Testimony, 

Senate Committee on Health Care, SB 587, Mar 1, 2021 (statement of Rachel 

Banks) (“Oregon is one of only seven states that does not require tobacco retailers 

to have a license.”); Testimony, Senate Committee on Health Care, SB 587, Mar 1, 

2021 (statement of Ivy Jones, Associate Government Relations Director, Oregon 

Medical Association) (“Oregon is one of thirteen states without a statewide licensure [program], and we believe it is time we create one.”).
Cite as 332 Or App 342 (2024) 347

of the political subdivisions with existing TRL programs 

“would want to keep those [TRL programs] in place.” Audio 

Recording, Senate Committee on Health Care, SB 587, Mar 

10, 2021, at 00:45:00 (comments of Sen Tim Knopp), https://

olis.oregonlegislature.gov (accessed Mar 13, 2024). For that 

reason, the legislature did not want to “preempt[]” those 

existing local programs, and it also did not want to require 

a retailer licensed to sell in a particular jurisdiction under 

a local TRL program also to be required to obtain a state-issued license. E.g., id.; Audio Recording, Senate Committee 

on Health Care, SB 587, Mar 17, 2021, at 00:05:20 (comments of Rep Kathleen Taylor), https://olis.oregonlegislature.gov (accessed Mar 13, 2024) (explaining that it was “not 

the intent of the bill to stack multiple licenses on retailers”).

The result of those discussions was the licensure 

scheme that was enacted by the legislature and codified at 

ORS 431A.194, ORS 431A.220, ORS 431A.198, and ORS 

431A.218, which, as explained below, includes provisions 

that permit cities and local public health authorities to 

continue their licensing programs if those programs were 

in place on or before January 1, 2021, and, in those jurisdictions, allows retailers to sell tobacco products without a 

state-issued license if they have a license or other authorization issued by the jurisdiction.

ORS 431A.194 prohibits the retail sale of a tobacco 

product or an inhalant delivery system from any premises 

that is not licensed under either ORS 431A.198 or ORS 

431A.220, providing:

“A person may not make a retail sale of a tobacco product or an inhalant delivery system at or from a premises 

located in this state unless the person sells the tobacco 

product or inhalant delivery system at or from a premises 

licensed or otherwise authorized under ORS 431A.198 or 

431A.220.”

ORS 431A.220 provides that cities and local public health authorities that had a TRL program for sales of 

tobacco products and inhalant delivery systems prior to 

January 1, 2021, may continue to run and enforce those 

TRL programs:
348 Schwartz v. Washington County

“A city or local public health authority that, on or before 

January 1, 2021, and pursuant to an ordinance adopted 

by the governing body of the city or local public health 

authority, enforced standards described in ORS 431A.218 

(2)(a) and required that a person that makes retail sales of 

tobacco products or inhalant delivery systems in an area 

subject to the jurisdiction of the city or local public health 

authority hold a license or other authorization issued by the 

city or local public health authority may continue to enforce 

the standards and require the license or other authorization on and after January 1, 2022.”

However, ORS 431A.218(7) prohibits cities or local 

public health authorities from requiring “a person that 

makes retail sales of tobacco products or inhalant delivery 

systems to hold a license or other authorization issued by 

the city or local public health authority in addition to [a] 

license issued” by the state under ORS 431A.198, “except as 

provided by ORS 431A.220”—that is, unless the local licensure or authorization program was in place on or before 

January 1, 2021.

Finally, ORS 431A.198 provides for retail licenses 

for tobacco sales issued by the Department of Revenue 

(DOR). It requires the DOR to issue a license when certain 

circumstances are met, but also provides that the DOR cannot require a retailer to have a DOR-issued license to sell 

tobacco products or inhalant delivery systems when the 

retailer has a license or other authorization issued by a city 

or local public health authority pursuant to ORS 431A.220:

“(1) Except as provided in subsection (8) of this section, the Department of Revenue shall issue licenses to, 

and annually renew licenses for, a person that makes retail 

sales of tobacco products or inhalant delivery systems at 

qualified premises.

“(2) To be qualified for licensure under this section, a 

premises:

“(a) Must be a premises that is fixed and permanent;

“(b) May not be located in an area that is zoned exclusively for residential use; and

“(c) Must meet any qualification for engaging in 

the retail sale of tobacco products and inhalant delivery 
Cite as 332 Or App 342 (2024) 349

systems enacted as an ordinance by the governing body of a 

local public health authority under ORS 431A.218, provided 

that the department has knowledge of the qualification pursuant to an agreement entered into under ORS 431A.212.

“*****

“(8) The department may not require a person that 

makes retail sales of tobacco products or inhalant delivery 

systems to obtain a license under this section if the person 

holds a license or other authorization issued by a city or 

local public health authority pursuant to ORS 431A.220.”

Thus, under ORS 431A.194, ORS 431A.220, ORS 

431A.198, and ORS 431A.218, a retailer is required to be 

licensed or authorized to sell tobacco products and inhalant 

delivery systems by a political subdivision that had a licensure or authorization system in place prior to January 1, 

2021, or by the state, but not by both, see Testimony, Senate 

Committee on Health Care, SB 587, Mar 1, 2021 (statement 

of Shawn Miller, Northwest Grocery Association) (“The bill 

allows Counties to continue their programs but would not 

layer the statewide license on top of the local license.”); cities 

and local public health authorities cannot require retailers 

to obtain a license issued by the city or local public health 

authority if a TRL program was not in place requiring such 

license or authorization prior to January 1, 2021; and, where 

a license or other authorization was required to sell tobacco 

products in a city or county on or before January 1, 2021, 

pursuant to a local law, the DOR cannot require a state-issued license to sell tobacco products or inhalant delivery 

systems in that jurisdiction.

Additionally, in defining the respective roles and 

responsibilities of the state and political subdivisions, 

Oregon’s scheme for TRL contains a provision expressly 

allowing the “governing body of a local public health authority” to enforce “standards for regulating the retail sale of 

tobacco products and inhalant delivery systems” in addition 

to those imposed by state law.6 Specifically, as relevant, ORS 

431A.218(2) provides:

6 ORS 431A.218(1)(a) defines “governing body of a local public health authority” with reference to ORS 431.003, which defines it to mean, among other things, 

the “governing body of a county.”
350 Schwartz v. Washington County

“Each local public health authority may:

“(a) Enforce, pursuant to an ordinance enacted by the 

governing body of the local public health authority, standards for regulating the retail sale of tobacco products and 

inhalant delivery systems for purposes related to public 

health and safety in addition to the standards described 

in paragraph (b) of this subsection, including qualifications 

for engaging in the retail sale of tobacco products or inhalant delivery systems that are in addition to the qualifications described in ORS 431A.198;

“(b)(A) Administer and enforce standards established 

by state law or rule relating to the regulation of the retail 

sale of tobacco products and inhalant delivery systems for 

purposes related to public health and safety if the local 

public health authority and the Oregon Health Authority 

enter into an agreement pursuant to ORS 190.110[.]”

(Emphases added.)

Further, ORS 431A.218(4) permits local public 

health authorities to “impose a civil penalty not to exceed 

$5,000 on a business that engages in the retail sale of 

tobacco products or inhalant delivery systems for violating 

a standard described in subsection (2).”

As SB 587 worked its way through the legislative process, it received support from various groups that expressed 

their support because the bill was largely understood to not 

prevent political subdivisions from creating additional regulations regarding tobacco products and inhalant delivery 

systems, as evinced by ORS 431A.218(2)(a). For example, 

Rachel Banks, Public Health Director at the Oregon Health 

Authority, testified in support of SB 587, and explained 

that “a strong tobacco license system does not preempt local 

governments from enacting stronger, tailored policies that 

reflect community needs and values” and that SB 587 creates an “opportunity [that] can be expanded through local 

action that is more protective and targets health inequities.” 

Testimony, Senate Committee on Health Care, SB 587, Mar 

1, 2021 (statement of Rachel Banks (emphasis added)). Gwyn 

Ashcom, the Tobacco Prevention Coordinator for Washington 

County Public Health, testified that Washington County 

supported SB 587, which “ensure[d] local public health can 
Cite as 332 Or App 342 (2024) 351

pass stronger time, place, manner requirements, and enforcement mechanisms.” Testimony, Senate Committee on Health 

Care, SB 587, Mar 1, 2021 (statement of Gwyn Ashcom 

(emphasis added)); see also Testimony, Senate Committee on 

Health Care, SB 587, Mar 1, 2021 (statement of Ivy Jones, 

Associate Government Relations Director, Oregon Medical 

Association) (“SB 587 will work to hold retailers accountable 

and create a statewide program, while also allowing for local 

jurisdictions to have flexibility.”).

Indeed, Ashcom specifically stated that, even if 

SB 587 was enacted, Washington County intended to move 

forward with its own ordinance which would include additional “protective strategies,” including regulation of flavored tobacco products—specifically, limiting the sale of 

those products to “establishments that are 21 and over”—

and prohibiting price promotions. Audio Recording, Senate 

Committee on Health Care, SB 587, Mar 1, 2021, at 00:46:25 

(comments of Gwyn Ashcom), https://olis.oregonlegislature.

gov (accessed Apr 2, 2024). That is, Washington County 

intended to adopt an ordinance regulating retail sales of 

tobacco products even if SB 587 was enacted and retailers 

obtained a state issued license.

We also note, however, that there is some testimony 

in the legislative record that could be read to demonstrate 

an understanding that SB 587 would prevent regulation of 

the sale of tobacco products by local governments when a 

state license had been issued; in other words, when an entity 

had obtained a state issued license, they could not also be 

regulated by local governments. See Testimony, Senate 

Committee on Health Care, SB 587, Mar 1, 2021 (statement 

of Shawn Miller, Northwest Grocery Association) (“[B]usinesses would not be regulated by both State and local entities under the passage of SB 587.”); Audio Recording, Senate 

Committee on Health Care, SB 587, Mar 1, 2021, at 00:37:40 

(comments of Shawn Miller), https://olis.oregonlegislature.

gov (accessed Mar 13, 2024) (stating SB 587 is a “responsible 

way to look at and prevent underage access to tobacco” and a 

“better approach than looking at banning different products 

or banning locations ** * and it makes it statewide”).
352 Schwartz v. Washington County

Ultimately, as enacted, SB 587 did contain a provision expressly preempting cities and local public health 

authorities from adopting ordinances that prohibit “a premises that makes retail sales of tobacco products or inhalant 

delivery systems from being located at the same address as 

a pharmacy,” though cities and local public health authorities can continue to enforce such ordinances if the ordinances had been adopted prior to September 25, 2021. ORS 

431A.218(6); see also Testimony, Senate Committee on Health 

Care, SB 587, Mar 1, 2021 (statement of Shawn Miller) (“[A]

dvocates at the County level have pushed extreme license 

restrictions such as banning tobacco sales of locations that 

have a pharmacy. *** Senate Bill 587 preempts these local 

pharmacy restrictions.”). But that pharmacy co-location preemption in ORS 431A.218 was, at least as understood by 

the Oregon Coalition of Local Health Officials and County 

Commissioners, which supported the SB 587, an exception 

to SB 587’s otherwise non-preemptive approach to local regulation. See Testimony, Senate Committee on Health Care, 

SB 587, Mar 1, 2021 (statement of Oregon Coalition of Local 

Health Officials and County Commissioners) (“[Oregon 

Coalition of Local Health Officials] and the Counties have 

agreed to one preemption in the bill. While local public 

health and local governments are usually very opposed to 

preemption we have agreed to this one as a compromise to 

pass this bill this session. We would not support another 

preemption that further restricts local public health authorities from regulating the time, place, and manner in which 

tobacco products, including e-cigarettes, are sold.”).

B. Washington County’s Authority as a Home Rule County

In 1958, Oregon voters approved a constitutional 

amendment allowing counties to adopt a home rule charter.7

 As amended, Article VI, section 10, of the Oregon 

Constitution provides, in pertinent part:

“The Legislative Assembly shall provide by law a method 

whereby the legal voters of any county, by majority vote of 

7 In the United States, “home rule” generally means an arrangement under 

which units of local government are “permitted to frame their own charters and 

regulate their local affairs.” Orval Etter, County Home Rule in Oregon, 46 Or L 

Rev 251, 252 (1967) (internal quotation marks omitted).
Cite as 332 Or App 342 (2024) 353

such voters voting thereon at any legally called election, 

may adopt, amend, revise or repeal a county charter. A 

county charter may provide for the exercise by the county of 

authority over matters of county concern.”8

(Emphasis added.)

In 1962, Washington County adopted a home rule 

charter that provides it with “authority over matters of 

County concern, to the full extent granted or allowed by 

the Oregon Constitution and laws of the State.” Washington 

County Charter, ch II, § 20.

We note that, in addition to the preemption issue 

that is now before us, plaintiffs’ complaint alleged that 

WCO 878 violated Article VI, section 10, of the Oregon 

Constitution, because, in plaintiffs’ view, “[i]t is a matter of 

state concern, and not county concern, whether to prohibit 

or permit the sale of products for which one is required to 

obtain a license under SB 587.” The trial court dismissed 

that claim on the merits, and plaintiffs have not assigned 

error to that ruling on appeal. Thus, for purposes of this 

appeal, we assume that, absent preemption, the enactment 

of WCO 878 was a valid exercise of Washington County’s 

home rule authority under its charter.

C. WCO 878

On November 2, 2021, the Board of Commissioners 

of Washington County, adopted WCO 878, which is 

entitled, “An ordinance to Prohibit Flavored Tobacco, 

Flavored Synthetic Nicotine, Prohibiting Coupon and Price 

Promotions, and Repealing Ordinance 599.” In WCO 878, 

the Board of Commissioners stated the finding, among others that it expressed, that “youth tobacco use is increasing 

in Washington County and the tobacco industry continues 

to use strategies that target child including the advent of 

new products, like flavored products, synthetic nicotine and 

inhalant delivery systems (vape products).”

8 Additionally, in 1973, the legislature enacted ORS 203.035(1), which currently provides that “the governing body or the electors of a county may by ordinance exercise authority within the county over matters of county concern, to 

the fullest extent allowed by Constitutions and laws of the United States and of 

this state.” That statute “obliterate[d] most distinctions between the powers of 

general law counties and home rule counties.” Allison v. Washington County, 24 

Or App 571, 581, 548 P2d 188 (1976).
354 Schwartz v. Washington County

WCO 878 provides, as relevant here, that in 

Washington County:

“No person shall sell, offer for sale, or otherwise distribute any flavored tobacco product or flavored synthetic 

nicotine product.”

WCO 878, Exhibit A, 2.30(B).

WCO 878 defines “flavored product,” in part, as:

“Any synthetic nicotine product or tobacco product that 

contains a taste or smell, other than the taste or smell of 

tobacco, that is distinguishable by an ordinary consumer 

either prior to or during the consumption of the product, 

including, but not limited to, any taste or smell relating 

to chocolate, cocoa, menthol, mint, wintergreen, vanilla, 

honey, molasses, fruit, or any candy, dessert, alcoholic beverage, herb, or spice.”9

WCO 878, Exhibit A, 2.20(B).

D. The Instant Litigation

On April 29, 2022, plaintiffs—businesses with 

locations in Washington county and owners of those businesses—filed a complaint in the Washington County Circuit 

Court seeking declaratory and injunctive relief. Plaintiffs’ 

complaint alleged that WCO 878 is preempted by Oregon’s 

scheme for TRL, i.e., ORS 431A.190 to 431A.220, and 

sought an injunction against defendant enforcing WCO 878. 

Plaintiffs’ complaint also alleged that WCO 878 “cannot 

apply to incorporated cities within Washington County.”

On what the trial court treated as cross-motions for 

summary judgment, the trial court concluded that WCO 878 

is preempted by state law and enjoined its enforcement. In 

light of that ruling, the trial court dismissed as moot plaintiffs’ claim that WCO 878 could not apply to incorporated 

cities within Washington County.

Defendant appeals the resulting judgment.10

9 Excluded from the definition of “flavored product” in WCO 878 is “any product 

that has been approved by the United States Food and Drug Administration for sale 

as a tobacco cessation product or for any other therapeutic purpose if the product is 

marketed and sold solely for the approved purpose.” WCO 878, Exhibit A, 2.20(B). 

10 Plaintiffs’ complaint also alleged that WCO 878 violated Article I, section 

20, of the Oregon Constitution and that it was “arbitrary and capricious.” As with 

the Article VI, section 10, claim, discussed above, the trial court dismissed those 
Cite as 332 Or App 342 (2024) 355

II. ANALYSIS

On appeal, in its sole assignment of error, defendant 

contends that the trial court erred in concluding that WCO 

878 is preempted by Oregon’s scheme for TRL. Plaintiffs 

disagree; they contend that the trial court was “correct in 

ruling that Senate Bill 587” preempted WCO 878.

“The analytical process for determining whether 

state law preempts a local law in Oregon is well established.” 

Owen v. City of Portland, 368 Or 661, 667, 497 P3d 1216 

(2021). The question is whether “a local law is ‘incompatible’ 

with state law, ‘either [1] because both cannot operate concurrently or [2] because the legislature meant its law to be 

exclusive.’” Id. (quoting La Grande/Astoria v. PERB, 281 Or 

137, 148, 576 P2d 1204, aff’d on reh’g, 284 Or 173, 586 P2d 

765 (1978)). We understand plaintiffs to contend that WCO 

878 is preempted for both reasons.

A. The Legislature Did Not Intend for SB 587 to be Exclusive

We first turn to whether the “legislature meant its 

law to be exclusive”; that “boils down to whether the legislature ‘unambiguously expressed its intent’ to preempt laws 

like the ordinance.” Owen, 368 Or at 668 (quoting Rogue 

Valley Sewer Services v. City of Phoenix, 357 Or 437, 454, 

353 P3d 581 (2015)). Put another way, “we assume legislature does not mean to displace local civil or administrative 

regulation of local conditions by a statewide law unless that 

intention is apparent.” Rogue Valley Sewer Services, 357 Or 

at 450 (internal quotation marks omitted). As is the case 

in other contexts, “we ascertain the intentions of the legislature by examining the text of the statute in its context, 

along with any relevant legislative history, and, if necessary, relevant canons of statutory construction.” Board of 

Cty. Comm. of Columbia Cty. v. Rosenblum, 324 Or App 221, 

239, 526 P3d 798 (2023).

At the outset, “we note that, when the legislature wishes to preempt local government regulation in 

claims on the merits, and plaintiffs have not assigned error to those rulings. Nor 

have plaintiffs assigned error to the trial court’s ruling dismissing their claim 

concerning application of WCO 878 to incorporated cities within Washington 

County as moot.
356 Schwartz v. Washington County

a particular field, it knows how clearly to do so.” AT&T 

Communications v. City of Eugene, 177 Or App 379, 394, 35 

P3d 1029 (2001), rev den, 334 Or 491 (2002); see, e.g., ORS 

166.170(1) (“Except as expressly authorized by state statute, the authority to regulate in any matter whatsoever the 

sale, acquisition, transfer, ownership, possession, storage, 

transportation or use of firearms or any element relating 

to firearms and components thereof, including ammunition, 

is vested solely in the Legislative Assembly.”); ORS 801.038 

(“A city, county or other local government may not enact or 

enforce any charter provision, ordinance, resolution or other 

provision regulating the use of cellular telephones in motor 

vehicles.”).

As indicated above, SB 587 contained certain provisions preempting local governments from regulating aspects 

of the sale of tobacco products and inhalant delivery systems. ORS 431A.218(6)(a) (prohibiting cities and local public 

health authorities from adopting ordinances that prohibit 

“a premises that makes retail sales of tobacco products or 

inhalant delivery systems from being located at the same 

address as a pharmacy”); ORS 431A.218(7) (prohibiting 

cities and local public health authorities from requiring a 

license in addition to a license issued under ORS 431A.218, 

except as provided by ORS 431A.220, which, as noted, provides that cities and local public health authorities that had 

a TRL program for sales of tobacco products and inhalant 

delivery systems prior to January 1, 2021, may continue to 

run and enforce those TRL programs).

But Oregon’s scheme for TRL does not contain language indicating that the legislature wished to entirely preempt local governments from regulating tobacco and synthetic nicotine products. To the contrary, as set forth above, 

ORS 431A.218(2)(a) expressly allows “the governing body of 

the local public health authority” to enforce ordinances that 

set “standards for regulating the retail sale of tobacco products and inhalant delivery systems for purposes related to 

public health and safety in addition to the standards” prescribed by state law. (Emphasis added.)

And that is what Washington County did with its 

prohibition on “flavored tobacco” sales set forth in WCO 
Cite as 332 Or App 342 (2024) 357

878—which we understand to largely amount to a restriction on certain ingredients. See Webster’s Third New Int’l 

Dictionary 2223 (unabridged ed 2002) (“standard” can 

mean, among other things, “something that is established 

by authority * * * as a model or example to be followed” and 

“a definite level or degree of quality that is proper and adequate for a specific purpose”). That is, WCO 878 is a standard as authorized by ORS 431A.218(2)(a).

If the legislature had intended for SB 587 to divest 

political subdivisions of any ability to regulate tobacco 

products, we can see no purpose in including the provision 

in ORS 431A.218(6)(a) prohibiting cities and local public 

health authorities from adopting ordinances that prohibit 

a premises that makes retail sales of tobacco products from 

being located at the same address as a pharmacy. State v. 

Stamper, 197 Or App 413, 418, 106 P3d 172, rev den, 339 

Or 230 (2005) (“[W]e assume that the legislature did not 

intend any portion of its enactments to be meaningless surplusage.”). That provision would have been surplusage, and 

we do not think it is; it shows that the legislature thought 

about preemption, and acted where it thought action was 

necessary.

The understanding that the legislature did not 

intend to preempt local government regulation of tobacco 

and nicotine product sales in enacting SB 587 is also supported by the legislative history of that bill as set forth 

above, which, we think, reflects an understanding that SB 

587, although intended to prevent a “patchwork quilt” of 

licensure requirements, was not intended to preempt local 

governments from “enacting stronger, tailored policies that 

reflect community needs.” Testimony, Senate Committee 

on Health Care, SB 587, Mar 1, 2021 (statement of Rachel 

Banks); see also, e.g., Testimony, Senate Committee on 

Health Care, SB 587, Mar 1, 2021 (statement of Gwyn 

Ashcom). As described above, the limited preemptive effect 

of SB 587 was discussed during the hearings on SB 587.

Further, as discussed above, although there was 

some testimony in the legislative history that could be 

read to demonstrate an understanding that SB 587 would 

prevent regulation of the sale of tobacco products by local 
358 Schwartz v. Washington County

governments when a state license had been issued, e.g.,

Testimony, Senate Committee on Health Care, SB 587, Mar 

1, 2021 (statement of Shawn Miller, Northwest Grocery 

Association), it appears to us that that understanding was, 

at most, a minority perspective, and it is inconsistent with 

the plain text of ORS 431A.218(2)(a), which expressly allows 

for the adoption and enforcement of local ordinances which 

set “standards for regulating the retail sale of tobacco products *** in addition to the standards” prescribed by state 

law. State v. Kelly, 229 Or App 461, 466, 211 P3d 932, 

rev den, 347 Or 446 (2009) (“Cherry-picked quotations from 

single legislators or of nonlegislator witnesses, are likely to 

be given little weight, as the likelihood that such scraps of 

legislative history represent the views of the institution as a 

whole is slim.”); Suchi v. SAIF, 238 Or App 48, 55, 241 P3d 

1174 (2010), rev den, 350 Or 231 (2011) (“Even assuming that 

the legislative history supported claimant’s interpretation, 

we are required not to construe a statute in a way that is 

inconsistent with its plain text.”).

For those reasons, in our view, the legislature did 

not “unambiguously express[] its intent to preempt laws 

like the ordinance.” Owen, 368 Or at 668 (internal quotation 

marks omitted). We thus conclude that legislature did not 

mean “for its law to be exclusive.” Id. at 667 (internal quotation marks omitted).

B. WCO 878 Can Operate Concurrently with ORS 431A.190 

to 431A.220

We turn to the question whether WCO 878—or at 

least the prohibition on the sale of flavored tobacco and flavored synthetic nicotine products contained therein—is preempted because it “cannot operate concurrently” with ORS 

431A.190 to 431A.220. Similar to our conclusion above, we 

conclude that WCO 878 it is not so preempted.

We have explained that “[a] local ordinance is not 

incompatible with state law simply because it imposes 

greater requirements than does the state.” Thunderbird 

Mobile Club v. City of Wilsonville, 234 Or App 457, 474, 228 

P3d 650, rev den, 348 Or 524 (2010) (internal quotation 

marks omitted). Instead, “a local law is preempted only to 
Cite as 332 Or App 342 (2024) 359

the extent that it ‘cannot operate concurrently’ with state 

law, i.e., the operation of local law makes it impossible to 

comply with a state statute.” Id.; see also Rogue Valley Sewer 

Services, 357 Or at 455 (citing Thunderbird Mobile Club, 234 

Or App at 474, for that proposition).

As described above, ORS 431A.190 to ORS 431A.220 

provide for a statewide TRL scheme in Oregon. That scheme 

prohibits the “retail sale of a tobacco product or an inhalant delivery system at or from a premises located in this 

state unless the person sells the tobacco product or inhalant delivery system at or from a premises licensed or otherwise authorized under ORS 431A.198 [providing for licenses 

issued by DOR] or ORS 431A.220 [providing for licenses or 

other authorization issued by political subdivisions].” In contrast, WCO 878 prohibits the sale and distribution of “any 

flavored tobacco product or flavored synthetic nicotine product” in Washington County.

WCO 878 is not preempted merely because it prohibits the sale of a product which is allowed, in certain circumstances, to be sold under Oregon’s scheme for TRL. Oregon 

Restaurant Assn. v. City of Corvallis, 166 Or App 506, 511, 

999 P2d 518 (2000) (“[W]e are reluctant to assume that the 

legislature, in adopting statewide standards, intended to 

prohibit a locality from requiring more stringent limitations 

within its particular jurisdiction.”); see also Thunderbird 

Mobile Club, 234 Or App at 460 (concluding ordinances 

requiring owners of mobile home parks to obtain a closure 

permit from the city and to compensate displaced tenants 

were not preempted by the Oregon Residential Landlord 

and Tenant Act, even though “the ordinances impose[d] 

greater requirements on owners of mobile home parks than 

mandated by the Residential Landlord and Tenant Act”).

Because a retailer can comply with both Oregon’s 

scheme for TRL and WCO 878’s prohibition on the sale and 

distribution of flavored tobacco and flavored synthetic nicotine products in Washington County by not selling those 

products in Washington County, compliance with both WCO 

878 and ORS 431A.190 to 431A.220 is not “impossible”; in 

other words, because Oregon’s scheme for TRL merely permits license holders to sell tobacco products and inhalant 
360 Schwartz v. Washington County

delivery systems, but does not require tobacco retailers to 

sell any particular type of tobacco product or inhalant delivery system, Oregon’s scheme for TRL can operate concurrently with WCO 878, which prohibits the sale of a certain 

type of tobacco and nicotine product.

On appeal, plaintiffs point to a different test for 

preemption than we apply in this opinion: They contend 

that preemption of a local ordinance occurs “when a statute 

permits actions that [the] ordinance prohibits, or prohibits 

actions that [the] ordinance permits.” The difficulty with 

plaintiffs’ argument is that, as explained in Thunderbird 

Mobile Club, that test is the test that “applies to the preemption of local criminal laws by a state criminal statute.” 

234 Or App at 475 (so noting, and explaining that the “preemptive effect of a state criminal statute is determined by a 

different test than the * ** standards for preemption of civil 

regulations”). That test is not applicable here.

III. CONCLUSION

In sum, we conclude that the trial court erred when 

it concluded that WCO 878 is preempted by ORS 431A.190 

to 431A.220.

Reversed and remanded.