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Vape shops challenge Denver’s flavored tobacco ban in court

Vape shops challenge Denver’s flavored tobacco ban in court

Vape shops challenge Denver’s flavored tobacco ban in court, asking the court to declare the ordinance unconstitutional and stop its enforcement.

The Rocky Mountain Smoke Free Alliance filed a complaint in Denver District Court arguing that the ordinance is unconstitutionally vague and violates multiple aspects of both the Colorado and U.S. constitutions.

The lawsuit does not seek monetary damages.

The plaintiffs assert that the city spares what they call “the most harmful products,” such as hookahs and cigarettes, while banning “lower-risk alternatives.”

“This law picks winners and losers,” said Joshua A. Weiss, attorney at Brownstein Hyatt Farber Schreck, in a statement Thursday. “Denver banned flavored vaping products but carved out an exemption for hookah tobacco, even though it is flavored and widely used by adults. Combined with vague definitions and enforcement based on packaging and marketing, the ordinance violates equal protection, due process, and constitutional protections for lawful commercial speech.”

Philip Guerin, a vape shop owner and president of the Rocky Mountain Smoke Free Alliance, added: “If City Council really cared about public health, they would have banned cigarettes a long time ago. Why isn’t the City Council banning them?”

The arguments in the lawsuit “are without merit and show this industry will go to any length to continue addicting kids with flavored products,” said Jodi Radke, Rocky Mountain/Great Plains regional advocacy director for the Campaign for Tobacco-Free Kids.

“By filing a lawsuit against Denver’s law ending the sale of flavored tobacco products, vape shops are once again prioritizing their profits over the health of Denver kids. Denver voters overwhelmingly upheld the law in November, and we’re confident the courts will uphold it as well. The courts have repeatedly upheld state and local laws that end the sale of flavored tobacco products.”

Specifically, the plaintiffs assert:

• Denver bans flavored vape products while explicitly exempting hookah lounges that sell flavored tobacco, even though hookah products are more potent and pose significant health risks. Vape shops and hookah lounges serve the same adult customers and market the same alternatives to cigarettes, yet only one is shut down.

• The ordinance relies on vague and subjective standards, forcing businesses to guess what terms like “cooling” or “numbing” mean and presuming products are illegal based on packaging, images, or truthful descriptions.

• The law restricts lawful adult commerce and chills protected speech by tying legality to marketing and labeling rather than product content.

• Small mom-and-pop businesses are closing, employees are losing jobs, and $13 million in tax revenue is being lost, while smoking rates have not declined.

Enforcement of Denver’s flavored tobacco ban, which prohibits the sale of any flavored tobacco or nicotine product, including menthol, within the City and County of Denver, began on Jan. 1.

City officials said that while education efforts will continue, retailers can expect both public-facing and undercover investigations to ensure compliance.

Guerin said he supports undercover visits to prevent underage purchases but finds the city’s stepped-up enforcement efforts ironic.

“Essentially, they’re doing what we’ve been begging them to do in the first place,” Guerin told The Denver Gazette.

Guerin, who owns Myxed Up Creations on East Colfax, told the Denver Gazette that since the city’s ban took effect, his overall business revenue is down by 60%

The blowback over the city’s ban on flavored tobacco stems from arguments that the product’s sweet and candy-like flavors target youth, in particular, and serve as a gateway to further substance abuse.

City documents claim that the economic impact of flavored tobacco products in Colorado amounts to $2.2 billion in annual healthcare costs, $4.4 billion in smoking-caused productivity losses, and $415 million in estimated Medicaid costs, for a total tax burden of $772 per household.

In late December 2024, the Denver City Council voted 11 to 1 to outlaw the sale of flavored tobacco products within the city and county.

Denver Mayor Mike Johnston supported the measure.

Johnston’s office declined to comment on the legal matter, deferring to the City Attorney’s Office.

The measure was challenged by a referendum and placed on the November 2025 ballot, when approximately 70% of voters approved keeping the ban in place.

Michael Bloomberg, waded into the fight to ensure the ban stayed on the books, contributing more than $5 million to Denver Kids vs Big Tobacco, according to Denver Searchlight, the city’s online database for campaign and finance disclosure.

Bloomberg, known for his anti-tobacco stance, has sought to advance policies that discourage tobacco use through his organization, Bloomberg Philanthropies.