Oregon Court Confirms Commercial Free Speech

On Wednesday, the Oregon Court of Appeals struck down an Oregon Health Authority regulation on the packaging of vape pens. It did so on free speech grounds, which is kind of awesome.

Vaping is not awesome. It’s disgusting, correlated to other bad behaviors, and not healthy. Yet, enjoying the robust benefits of living in a free society requires allowing the freedom to fail. Vaping is a life failure. Let people vape. It’s also less of a life failure than smoking tobacco. So give smokers alternatives.

While vaping might not be awesome, Oregon’s protection of commercial speech is. One general problem in American jurisprudence is to carve out our fundamental rights from the commercial sphere. At the state level, Oregon doesn’t do that for commercial speech. Businesses have the freedom of speech as well.

The Oregon Health Authority’s application of HB 2546 from the 2015 Oregon legislative session has imposed sweeping restrictions on the sale of vape products. Part of these regulations were challenged in Bates v. Oregon Health Authority.

The Oregon Court of Appeals decided in favor of Bates’s free speech argument:

The parties do not dispute that limiting minors’ use of vaping products is a legitimate legislative purpose. We agree…. However, ORS 431A.175(2)(f) is only concerned with the expressive content of the packaging of products legally sold to consenting adults. If the products are packaged in a manner that is not attractive to minors, the sale is lawful; if they are packaged otherwise, the sale is unlawful. The law therefore restrains expression and does not regulate the effect of a sale to a minor or a minor’s later use of the product….

Defendants do not suggest any basis for finding this law to fall within any historical exception [to the state constitutional provision, such as] {“perjury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud and their contemporary variants”} and we are aware of none….

Chalk that up as a win for liberty in Oregon.

Eric Shierman lives in Salem and is the author of We were winning when I was there.