Bates v. Oregon Health Authority

A statute regulating product packaging that is “attractive to minors” is unconstitutional if it regulates an expression of speech but does not regulate the effect of the product’s sale to a minor.

Plaintiff challenged the “attractive to minors” packaging restrictions of inhalant delivery systems, commonly known as “vape pens” or “e-cigarettes” under ORS 431A.175(2)(f) and OAR 333-015-0357. Plaintiff contended that the trial court erred when it: 1) concluded ORS 432.A175(2)(f) did not violate Article 1, Section 8 of the Oregon Constitution; 2) failed to address the statute’s vagueness; 3) concluded the court lacked jurisdiction; and 4) failed to conclude the regulations were unconstitutional. In the first assignment of error, Plaintiff argued that ORS 431A.175(2)(f) restricted a medium of expression. The court applied the framework set forth in State v. Robertson, 293 Or 402, 649 P2d 569 (1982) and determined ORS 432.A175(2)(f) was a Robertson category one statute because it was “written in terms directed to the substance of a communication.” The court found that “attractive” in reference to packaging was expressive content and therefore qualified as an expression of speech that did not regulate the effect of a sale to a minor. Because the Court determined the statute was unconstitutional, the Court did not address Plaintiff’s second and fourth assignments of error. The Court did, however, comment on Plaintiff's third assignment of error, stating that the jurisdiction was proper. REVERSED AND REMANDED.