OPINION: Can States Force Business To Hide Their Products From Customers?


Matt Miller Goldwater Institute
Font Size:

Can the government stop businesses from giving people accurate information about their products? Most people would answer this question with a resounding, “of course not!” But the government doesn’t always see it that way. The latest example is in Oregon, where the state is telling vape shops — which sell e-cigarettes, vaping liquids, and related products — that they can’t describe certain legal products to their customers.

This isn’t the first time the government has imposed its heavy hand on how businesses communicate about their products. For example, the Food and Drug Administration tells businesses that they cannot call milk “skim milk” unless they first add artificial vitamins. And Texas tells people that they cannot use the word “pickled” to describe pickled vegetables, except for cucumbers.

Oregon’s new anti-speech regulations are just as ridiculous. Under Oregon law, any vaping product with an image or even a word deemed “likely to appeal to minors” must be censored before being placed on store shelves. So for example, vape shops have to cover up pictures of apples — or even the word “apple” when it appears on the label of an apple-flavored vaping liquid.

That is why Paul Bates, who owns Division Vapor, a 21-and-over vape shop in Portland, has sued Oregon to defend free speech for small businesses like his, with the help of the Goldwater Institute. Under Oregon’s rules, Paul must pay an employee to sit in his stock room and place white stickers over the offending labels. Once they have been censored, the bottles are displayed on racks behind the counter at Division Vapor. Rather than browsing at their leisure, customers must ask an employee about any product with a censored label. Can you imagine a similar process at a grocery store or a bookstore? This is no way to be forced to run a business.

Oregon claims an absolute right to regulate vaping labels under the guise of protecting children, but someone has to be at least 21 years old to even enter Division Vapor, so this argument makes no sense. All of us — including small businesses — enjoy robust free-speech rights under the U.S. and state constitutions. If the government is going to prevent someone from saying something, it must have not just a good reason, but a compelling reason. “We need to protect children from seeing words and pictures on products being sold in an adults-only business” falls far short.

It may be true that protecting children from harm is a legitimate governmental interest, but that interest does not automatically trump the constitutional rights of individuals. If it did, then the government could require businesses to censor all kinds of things that are regularly displayed in stores — things like the covers of Harlequin romance novels or fun craft beer labels — that might pique the curiosity of children.

This law doesn’t just hurt small businesses like Division Vapor. It also hurts grown adults who are looking to switch from smoking to vaping. Vaping is not entirely safe, but it is much safer than smoking. As FDA Commissioner Scott Gottlieb said to CNBC, “We recognize [e-cigarettes] as a viable alternative for adult smokers who want to get access to satisfying levels of nicotine without all the harmful effects of combustion. If we could switch every adult smoker to an e-cigarette, it would have a profound public health impact.”

Oregon’s rules hurt local businesses, hurt adults who are looking to quit smoking, and do nothing to protect children, who are not even allowed to enter Division Vapor in the first place.

Some people (and courts) use the phrase “commercial speech” to discuss things like labels and signs, but these things are really just speech, not some exotic breed of speech. And like any other kind of speech, the goal of labels and signs is to communicate information to other people. Indeed, this kind of communication is the lifeblood of our economy. It allows us to know what products and services people want to offer us, and it allows us to make the best decisions about how to spend our money.

If someone has a legal right to sell a product, they have a constitutional right to accurately describe that product to potential customers. It’s time for a court to declare Oregon’s laws and rules declared unconstitutional. The government cannot treat the speech of businesses as a lesser form of speech, waiting to be regulated based on the most minimal governmental interest. Our state and federal constitutions demand better.

Matt Miller is a senior attorney at the Goldwater Institute, a nonprofit group headquartered in Arizona. He represents Portland, Oregon, vape shop owner Paul Bates.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.