Senate committee hears broad opposition to bill giving Oregon Health Authority rulemaking power over vape packaging

Senate Bill 1198, which would give the Oregon Health Authority (OHA) targeted rulemaking authority to restrict packaging of inhalant delivery systems to protect minors, drew extensive public testimony and pushback at the Senate Committee on Rules on April 21.

Sen. Kathleen Taylor, D‑Portland, who introduced the measure, told the committee the bill restores packaging protections adopted after a 2015 law and is designed to let OHA adopt rules “around packaging that will protect minors from the negative health effects of unlawfully using inhalant delivery systems.” She said the measure is intended to preserve the state’s prior approach after a court invalidated part of the existing statute.

The bill’s legal design was described in detail by Victor Reuther, deputy legislative counsel. Reuther said OHA has appealed the Court of Appeals ruling in Bates v. Oregon Health Authority to the Oregon Supreme Court and then summarized Oregon’s free‑speech test under State v. Robertson. He said the 2024 Bates decision struck down a prior statutory packaging prohibition as a category‑1 restriction on expression because it used the expressive standard “attractive to minors.” Reuther told the committee SB 1198 was drafted to be “speech neutral because it does not expressly regulate or prohibit speech,” and to make the packaging limitation a rulemaking task tied closely to the specific purpose of protecting minors. He said that, if enacted, OHA rules would likely be analyzed as Robertson category‑2 laws (regulations aimed at preventing harmful effects) and remain subject to further judicial review.

Retailers, small‑business groups and trade associations overwhelmingly testified in opposition to the bill as written. Sam Masani, who identified himself as the owner of multiple neighborhood markets in Portland, said he agreed with the bill’s intent but urged committee members to “please do not hand over the legislation power to OHA,” arguing the agency would have too much discretion. Jason Weber, owner of Smokeless Solutions and Vape Crusaders, said he supports keeping products away from minors but called the bill “a huge overreach” and said the existing federal and state rules and retailer practices already limit youth access.

Other opponents included representatives of the Korean American Grocer Association of Oregon (Kegro), the Oregon Small Business Association, the Taxpayer Association of Oregon and the 21+ Tobacco and Vapor Retail Association of Oregon. Emily Soules of the Oregon Small Business Association said the measure poses “significant concern regarding potential overreach by an unelected agency” and said affected retailers had not had adequate opportunity for input. Matt Evans of the Taxpayer Association warned the bill could “shut down hundreds of taxpaying small businesses and put thousands of taxpaying Oregonians out of work” if OHA used broad authority to ban legal products.

Richard Burke, executive director of the 21+ Tobacco and Vapor Retail Association of Oregon, told the committee that overly broad packaging restrictions could push consumers to unregulated black‑market products. “There are a lot of black market vapes ... laced with fentanyl, a lot of them are laced with meth,” Burke said, and argued regulated products should remain available in licensed stores.

Retail testimony repeatedly said store operators take carding and compliance seriously and described training, ID scanning and random audits as standard practice; several retailers said they support the bill’s public‑health goal but oppose delegating broad discretion to OHA or leaving the bill vague about what could be banned. Some retail witnesses said a narrower, clearer drafting or a specific amendment would be acceptable; several witnesses said they expected an amendment but had not yet seen it.

No committee vote was taken on SB 1198 during the April 21 session. Reuther noted legal uncertainty because OHA has appealed Bates to the Oregon Supreme Court; committee members asked witnesses and industry representatives to submit packaging photos and additional written testimony to help the record if rules or amendments are proposed.

The committee closed the public hearing on SB 1198 after the testimony and returned to other agenda items. Because the bill would require OHA rulemaking subject to further legal review, its ultimate scope and effect remain contingent on rule language, administrative action and potential court decisions.