The Kansas Supreme Court issued an opinion Friday reversing a Shawnee County District Court's injunction blocking enforcement of a Topeka ordinance banning the sale of cigarettes and other tobacco products to people under 21.
The ordinance was challenged by Topeka businesses Vape Bar and Puffs ‘n’ Stuff, which argued the prohibition was unconstitutional and contrary to state law.
In an opinion written by Justice Caleb Stegall, the Supreme Court held the ordinance to be a valid exercise of the city government's home rule power within framework of the Kansas Constitution. Since 1961, the constitution has contained the home rule amendment empowering local governments to determine their local affairs and governance by ordinance.
"Oh, good," said former Topeka City Council member Elaine Schwartz, who started smoking at age 14 and introduced the ordinance as a way for the city to promote teen health. "It's fantastic and will save lives and save on health care costs."
Topeka city officials said the new ruling wouldn't immediately result in enforcement of the increase in the legal age to purchase tobacco, electronic cigarettes and nicotine products within city limits. A final Supreme Court order won't be issued for at least 21 days because plaintiffs have that period to file a motion requesting a rehearing before the justices.
Two dozen municipalities in Kansas, including Topeka, and more than 475 cities and counties in the United States have passed ordinances setting the age for buying tobacco products at 21.
The Supreme Court's opinion declared Kansas law didn't pre-empt the city's application of an ordinance on tobacco sales.
"The act does not pre-empt cities from regulating tobacco products, and the ordinance does not conflict with the act by imposing greater restrictions," the opinion said. "Because the ordinance is a constitutional exercise of the city's home rule power, we reverse the district court's permanent injunction."
The City of Topeka adopted Ordinance No. 20099 in December 2017 to make it unlawful for any person to sell, furnish or distribute cigarettes, electronic cigarettes, tobacco products or liquid nicotine to any person under age 21, or to buy any of these products for a person under age 21.
A Shawnee County District Court judge had granted a permanent restraining order blocking the city from enforcing the ordinance based on state law that set the legal age for buying tobacco products at 18.
Craig Barnes, manager for community health outreach and planning at the Shawnee County Health Department, said implementation of the ordinance in Topeka would occur at a time when electronic cigarette usage was exponentially increasing in the county. E-cigarettes are popular with beginning smokers and the ban will be an effective deterrent for youth, he said.
"Increasing the age to purchase tobacco to 21 will reduce tobacco use among youth and young adults, age groups where nearly all tobacco use begins and are heavily targeted by the tobacco industry," Barnes said.
The Communities that Care database indicated Shawnee County experienced a 6.8 percent rise during the past three years in e-cigarette usage among residents in sixth grade through 12th grade who said they had used used e-cigarettes in the past 30 days. The statewide increase was 7.1 percent during that period, the survey said.