Denver’s Flavored Tobacco Ban Faces Constitutional Challenge From Vape Trade Group

Key points

• Plaintiff: Rocky Mountain Smoke Free Alliance (represents ~125 small business owners and manufacturers in Colorado’s vaping industry)

• Defendants: City of Denver and Denver Department of Public Health and Environment (DDPHE)

• Ordinance: Denver Ordinance 24-1765; approved by voters in Nov. 2025; effective Jan. 1, 2026

• Main claim: terms like “cooling or numbing sensation” are subjective and lack generally accepted meanings

• Additional claims: Equal Protection (hookah exemption), Dormant Commerce Clause (packaging changes for Denver), First Amendment (flavor statements/images as commercial speech)

2First, January 27, 2026.

According to Law360, the Rocky Mountain Smoke Free Alliance (RMSFA), a trade group representing about 125 small business owners and manufacturers in Colorado’s vaping industry, has asked a Colorado state court to issue a permanent injunction blocking enforcement of Denver’s flavored tobacco sales ban (Ordinance 24-1765) and a declaration permitting the sale of flavored tobacco and vape products. Voters approved the ordinance in November and it took effect on Jan. 1, 2026.

RMSFA argues the ordinance is unconstitutionally vague under the Colorado Constitution, contending that key terms—such as whether a product imparts a “cooling or numbing sensation”—describe highly subjective experiences without generally accepted meanings. The complaint also raises concerns that the city and DDPHE contemplated relying on sources like online customer reviews to make enforcement determinations, potentially exposing products and retailers to misleading or manipulated information.

The lawsuit also asserts violations of the U.S. Constitution, including:

• Equal Protection, because the ordinance exempts hookah tobacco despite allegedly containing flavorings and posing greater health risks than e-cigarettes;
• Dormant Commerce Clause, because out-of-city retailers would have to modify packaging for Denver; and
• First Amendment, because flavor-related statements and imagery on packaging constitute commercial speech promoting a product.

RMSFA alleges the ordinance harms approximately 575 tobacco retailers in Denver, could cost the city roughly $13 million in annual tax revenue, and may spur increased unregulated sales of flavored products.

Image Source: Law360