Denver’s ban on flavored tobacco products remains in place after a court this week dismissed a lawsuit challenging that law.
In 2024, the city council passed the flavor ban over concerns about underage vaping and smoking and long-term health risks. Last fall, Denver residents by a 70 to 30 margin voted to keep it.
But the Rocky Mountain Smoke Free Alliance, a coalition of small vape shop business owners and manufacturers challenged the law, alleging violations of due process, equal protection and free speech rights. It filed a lawsuit against the city earlier this year.
On Wednesday, Denver District Court Judge Ericka F. H. Englert ruled in the city’s favor, saying the plaintiffs failed to prove those claims.
“The city has a legitimate interest in promoting public health, combatting tobacco sales to minors, and reducing youth consumption of tobacco products,” Englert wrote in a 20-page ruling.
When the vape store coalition filed the suit, it said the ban was closing mom-and-pop businesses, cutting jobs and losing the city $13 million in tax revenue, while smoking rates had not declined. The lawsuit said sales were being pushed to other cities.
Reaction from flavor ban advocates
People who support the flavor ban celebrated the ruling.
“Flavored products are a primary driver of youth tobacco use, masking the harshness of tobacco and nicotine products and making them more appealing to young people,” said Jodi Radke, regional director of the Campaign for Tobacco-Free Kids, in a press release. “By ending the sale of these products, Denver is standing up to the tobacco industry's longstanding practice of using flavors to attract and addict kids.”
She said the group was grateful to the 26 other national, state and local public health, medical and community organizations that joined an amicus brief supporting the city's motion to dismiss.
“Their participation demonstrated broad and diverse support for Denver's efforts to protect young people, save lives, and create healthier communities,” Radke said.
Perspective from vape shops
Denverite reached out to the Rocky Mountain Smoke Free Alliance for reaction but hasn’t yet heard back.
When Denver vape store owners filed suit earlier this year, they called the ban “unconstitutional, unfair, and selectively enforced,” in a press release. They contend the ordinance shuts down small mom-and-pop vape shops while letting other flavored tobacco products remain legal and for cigarettes to continue being sold across the city.
“If Denver City Council really cared about public health, they would’ve banned cigarettes a long time ago,” said Kristen Hensel, owner of Rusty’s Vape Store in Denver, in the release. “Cigarettes are still sold in every store across Denver, even though they’re the deadliest tobacco product. Instead of fighting for what is right, the City is shutting down small mom-and-pop shops like mine.”
“This law picks winners and losers,” said Joshua A. Weiss, attorney at Brownstein Hyatt Farber Schreck, which filed the lawsuit for the group, in the release. “Denver banned flavored vaping products but carved out an exemption for hookah tobacco, even though it is flavored and widely used by adults.”
The group’s lawsuit asked the court to declare the ordinance unconstitutional and stop its enforcement. But Englert disagreed and dismissed the group’s claims.
