The Kansas Supreme Court on Friday upheld a Topeka law banning the sale of tobacco products to anyone under 21 years old, preserving similar ordinances across the state including many in the Kansas City area.
The court found the ordinance, one of about 20 passed by cities across the state, was constitutional because it did not conflict with a state law that expressly banned the sale of tobacco products to anyone under 18.
The court found that Topeka constitutionally exercised its home-rule powers when it passed the ordinance restricting the sale of tobacco products to anyone under 21.
“This is a victory for the health of Kansas. It is also a victory for local control,” the Greater Kansas City Chamber of Commerce said in a statement Friday.
The chamber has led efforts in the Kansas City area to encourage local governments to raise the legal age to 21 for buying tobacco products.
In an opinion authored by Justice Caleb Stegall, the court found that the Topeka ordinance was constitutional because state law didn’t address selling tobacco products to anyone from the ages of 18 to 20.
The vape shop and the tobacco retailer that brought the lawsuit argued that the city’s ordinance prohibited what is permitted under state law.
“If there was an express authorization in (state law) for people under the age of 21 to buy tobacco products, or an express authorization to sell tobacco to those people, (the plaintiffs) would have a point,” Stegall wrote.
“But there is no express authorization,” he wrote. “The act is silent with respect to people who are 18, 19, or 20 years old. In the face of such silence, ‘where both an ordinance and the statute are prohibitory and the only difference is that the ordinance goes further in its prohibition . . . there is no conflict.'”
Robert “Tuck” Duncan argued the case for the vape shop and the tobacco retailer. He noted that the Supreme Court left open the opportunity to refile the lawsuit to pursue any claims that were previously dismissed without prejudice. He is considering that option.
Duncan pointed out there is nothing in Topeka that stops someone under 21 from consuming tobacco products. He said someone could easily buy tobacco products in another jurisdiction and bring them back to Topeka.
The Supreme Court’s ruling overturned an injunction blocking the law handed down by Shawnee County District Judge Franklin Theis.
Amanda Stanley, general counsel for the League of Kansas Municipalities, called the decision the most significant home-rule case for cities in the last 20 years.
“This is a great day for home rule,” Stanley said. “We are really glad that the Supreme Court has reaffirmed that the Legislature has to expressly pre-empt cities from acting in ways that do not conflict with state statute.”
Justices Marla Luckert and Lee Johnson did not hear the case. They were replaced by Appeals Court Justice Karen Arnold-Burger and Senior Judge Michael Malone.
The court simply found that the language in the state law didn’t prohibit what the city was trying to do with the tobacco ordinance.
The law, the court said, “does not ‘expressly authorize’ what the ordinance prohibits — the selling and buying of tobacco products to and by 18-, 19-, and 20-year-olds,” the court wrote. State law “simply fails to proscribe it.
“Thus, the ordinance does not conflict with the (law) because the ordinance does not prohibit what the (law) expressly authorizes,” the court ruled.
“The ordinance merely enlarges a provision of the statute by requiring more than the statute — a practice we have repeatedly treated as creating no conflict.
As of March 2019, 22 local governments had banned the sale of tobacco products to anyone under 21, including Overland Park; Kansas City, Kan.; Olathe; Lenexa; Leavenworth; Prairie Village; Iola; Garden City; Parsons; and Holcomb.
A report three years ago by the Kansas Health Institute showed that banning the sale tobacco products statewide would directly or indirectly affect about 250,000 Kansans from the age of 15 to 20.
