The only smoke shop in Prior Lake is suing the city over an ordinance forbidding the sale of flavored vaping products, alleging the ban is unconstitutional.
Prior Lake Tobacco and Vape opened in 2020, only to have flavored vaping products banned by the city within a year, said attorney V. John Ella, who is representing the store.
"My client's very anxious because he's losing money," Ella said. "Without vaping, in today's market, you just can't make a profit in this business."
The ordinance bans the sale of flavored vaping products, not including menthol, and does not provide an exception for sales to customers 21 or older. It took effect Aug. 15, prompting the lawsuit.
Monte Mills, the city's attorney, declined to comment. But court documents show the city has asked that three of the case's four counts be dismissed.
In the motion to dismiss those counts, the city argues that the ordinance relates to a "legitimate governmental interest" and builds on Minnesota's existing laws to help smokers to quit, regulate vaping devices and protect young adults against vaping's negative effects.
The suit comes after a December 2019 federal law banning the sale of tobacco to those under 21.
By that time, more than 50 Minnesota cities already had enacted such a ban. A similar state prohibition went into effect in August 2020.
But Ella said most cities with ordinances restricting flavored tobacco sales make allowances so a "21-plus store" like his client's — a nondescript strip-mall shop with a black awning and neon signs in the window — can sell vaping products to adults only.
Ella said the city's stated goal of protecting young adults from starting to use vaping products could be "fully achieved" with an exemption allowing flavored vaping product sales at 21-plus stores. He believes his client's business is being treated differently than similar businesses, including liquor stores that sell flavored liquors to customers 21 and older.
His client is being punished despite no history of selling to minors, Ella said.
"Our argument is, it's just not fair," he said.
Emily Anderson, policy director for the Association for Nonsmokers-Minnesota, said her group supports Prior Lake's efforts to forbid the sale of flavored vaping products but believes cities also should ban traditional tobacco products — like cigarettes and cigars — with flavoring.
"It will advance racial equity, keep kids healthy and save the state a lot of money," she said.
Eight Minnesota cities have gone that more restrictive route: Bloomington, Golden Valley, Arden Hills, Lauderdale, Lilydale, Edina, Mendota Heights and Shoreview. Menthol products are included in those bans.
Edina already is facing a lawsuit over its ordinance.
In June 2020, tobacco company R.J. Reynolds and two convenience stores sued Edina, challenging the constitutionality of its ordinance. The city moved to dismiss the suit and the court agreed, but in September 2020, the plaintiffs appealed.
The U.S. Court of Appeals has not yet ruled in that case.
Anderson said Prior Lake's ordinance that focuses on flavored vaping products is a bit different from the one at issue in Edina.
Federal courts have upheld ordinances like Edina's that cover all flavored products, she said, because they are effective in preventing tobacco use.
She said a comparison to liquor and liquor stores isn't logical because those businesses sell different products — tobacco kills more of its users.
In Prior Lake, Ella said his client's shop still is open since he signed a five-year lease, but the business isn't doing well. According to documents in the lawsuit, the store will go out of business if the ordinance remains effective.
"You can say what you want about vaping — it's otherwise a lawful product," Ella said. "He's just trying to run a business."
Erin Adler • 612-673-1781