PORT ANGELES — Clallam County and cities within its borders may want to but can’t increase the state-mandated smoking and vaping legal age from 18 to 21, David Alvarez, county chief civil deputy prosecuting attorney, told the Board of Health on Tuesday.
Port Angeles City Council member Lindsey Schromen-Wawrin told the board that Clallam County and other jurisdictions statewide should challenge the law in court.
Alvarez cited the Revised Code of Washington, which “pre-empts political subdivisions from adopting or enforcing requirements for the licensure and regulation of” vapor and tobacco product promotions and sales at retail stores.
That prompted health board members to hold off recommending to county commissioners that the tobacco-vaping use age limit be increased, as was discussed at a joint May 17 Port Angeles City Council-Clallam County commissioners meeting.
Alvarez said the legal age of 18 was part of “a statewide system of uniformity” in regulating tobacco and vaping products.
“I would say, this is just my analysis, this a lawful product,” he told the board.
“You might think it’s a harmful product.
“But like alcohol and cannabis, it can be regulated and used by adults in a lawful manner.
“That’s why the state has a pre-emptive system, just like they do with alcohol and cannabis.”
Schromen-Wawrin, a civil litigator and constitutional lawyer who pushed the notion of raising the legal age at the May 17 meeting, said in a later interview that he hopes to present a proposal to the health board in July that would challenge the state law.
He wants the county commissioners to pass an ordinance more restrictive than state law that could be challenged by the tobacco industry.
The legal fight could be waged by Clallam County and joined by other jurisdictions that agree the legal age should be increased, he said.
Passing the ordinance would affirm the right of local governments to protect the health, safety and welfare of their residents, he told health board members.
“That’s the purpose of government,” Schromen-Wawrin said, calling the current smoking age “a gift to the tobacco industry” when the state law was passed in 1993 and referring to the industry as a “villain.”
“By what authority does the state prevent local government from doing what they are supposed to do?
“What if a city or county wants to be more protective of public health?
“Let’s look at this and say, if this is something we want to challenge, to say, hey, that we are within our authority and that the state is actually wrong.
“If we don’t push back against government overreach, it’s just going to continue.
“This is the sort of thing that we need to say, you know, how do we advance the law and make a better legal system, how do we improve the system of justice?
“We do that in many ways by interacting with the courts.”
Board of health member Jeanne LaBrecque urged Schromen-Wawrin to prepare a document to present to the board that would describe “doing the right thing, and how do you do it.”
County Commissioner and health board member Randy Johnson suggested a legal fight would cost considerable county resources.
“Don’t think this is free,” he said.
“The question is, how do we go to the state Legislature?”
Commissioners’ Chairman Mark Ozias, also on the health board, had pledged at the May 17 joint meeting that the county would take the lead on establishing the more restrictive regulations.
He said then that the board of health had discussed increasing the vaping-age limit at a meeting two days before the joint session.
Ozias was not enthusiastic following Tuesday’s meeting about a court challenge.
He noted a proposed “Tobacco 21” state law to raise the minimum age for tobacco use to 21 has died in committee in the state Legislature.
“It’s well worth working with our local legislative delegation and others in the Legislature to do what we can to promote Tobacco 21 legislation,” Ozias said.
He acknowledged “sufficient interest” among health board members to hear out Schromen-Wawrin but expressed “mixed feelings” about a legal challenge.
“There is a potential value in doing that,” Ozias said.
“At the same time, it has the potential to utilize a lot of time and a lot of resources, and whether this is the right time and place to do that, I don’t have an opinion on that yet because I don’t have a sense of what that means.”
Also present at the meeting Tuesday were health board members Donald Lawley and Dr. Gerald Stephanz, and county Commissioner Bill Peach, who also is a board of health member.
Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 55650, or at [email protected].