Vape products

A shelf at Prior Lake Vape and Tobacco Inc. is stocked with flavored vape products. At its most recent work session, the city council considered language for the proposed tobacco ordinance change that may ban the sale of flavored e-cigarette products. A public hearing on the proposed ordinance change will be held in February.

The Prior Lake City Council discussed a proposed tobacco ordinance change during its first work session of the new year, ultimately deciding to hold a public hearing and gather more feedback on the proposal to ban flavored e-cigarette products.

At its December meeting, the council enacted a tobacco moratorium which prohibits any new businesses from selling flavored vape products while the council considers if the products should be banned within the city. The conversation stemmed from a recent application for a tobacco license by a new smoke shop in Prior Lake.

During the Jan. 4 meeting, city staff brought forth proposed language for the council to consider which bans “flavored vaping materials which are defined as all flavors except tobacco and menthol and all materials for use or able to be used to vaporize and/or aerosolize substances for inhalation. Flavored vaping products include but are not limited to the following flavored items: e-cigarettes, vapes, cartridges, pods, tanks mods, juices and liquids,” city documents state.

While the language is more in line with the goals of the council which previously discussed at length its concern on the effect of vaping on local youth, they must also consider the legal ramifications that such a ban could bring about. Like other Minnesota cities, should Prior Lake pursue the ban they could be sued by a local business owner or a large tobacco company.

City Manager Jason Wedel noted that the city has received two letters, one from the attorney representing the Prior Lake tobacco store owner asking the city not to ban any products and another from the Minnesota Retailers Association asking more specifically for the city to allow the sale of flavored vape products.

The city of Edina is being sued by tobacco company RJ Reynolds. The lawsuit claims that federal tobacco regulations preempt the city from regulation. The case was dismissed in district court, but was appealed.

A similar lawsuit is taking place between the city of Arden Hills and a local business owner who claims the ban damages business.

The difference between the two suits is that the League of Minnesota Cities is representing Arden Hills and covering the cost of legal fees because the business is making specific claims and requesting money damages, while the city of Edina is footing its own bill because the tobacco company is simply asking the ordinance be thrown out, Prior Lake City Attorney Sarah Schwarzhoff said.

“The problem for the city of Prior Lake is there is no way to control how we get sued,” she said. “If we get sued there’s no way to make sure it’s one versus the other to ensure we have league coverage, so I think going forward you have to assume we don’t have coverage.”

A lawsuit from the large tobacco company is unlikely, Schwarzhoff said, as they’re already in the middle of a case that was once dismissed. It is more likely the city would see a suit from a local business owner like in Arden Hills’ case.

During the meeting, the council also discussed the possibility of adding flavors like wintergreen and mint to the current list of acceptable flavors which only includes tobacco and menthol; changing the heading of the current ordinance from “Tobacco” to be more specific; and allowing the four tobacco retailers within the city a period to sell out their inventory after a ban is passed.

The council aims to make a decision on the ordinance before the tobacco moratorium expires on March 8. A public hearing in regards to this matter is tentatively scheduled to take place during the Feb. 16 meeting of the city council.

“Irrespective of what language goes in this ordinance I think we’re prepared for a hearing,” Mayor Kirt Briggs said. “As far as the language that we have here today presently, that we were called to review, I want to say it’s a good first shot. I don’t want to go any further.”

In the time leading up to the public hearing, city staff will take into consideration the input received from the council and submit the proposed ordinance for revision and review by the Mitchell Hamline School of Law Public Health Law Center.