Judge says Topeka has no authority to raise smoking age to 21, prohibits city from enforcing new ordinance

TOPEKA — Topeka cannot enforce a new ordinance that banned the sale of tobacco products to anyone younger than 21 after a judge ruled the ordinance violates the Kansas Constitution.

Shawnee County District Judge Franklin Theis issued a permanent injunction Thursday barring Topeka’s city government from enforcing an ordinance approved in December.

More than a dozen other cities in Kansas have passed “Tobacco 21” ordinances, in an effort to restrict people between 18 and 21 from buying cigarettes and other tobacco-related products, including electronic cigarettes. Topeka’s law was scheduled to take effect in January.

The Vapebar Topeka and Puffs ‘n’ Stuff in Topeka claimed in a lawsuit that state lawmakers, not cities, have the authority in such laws. Theis agreed, issuing a permanent injunction because the ordinance goes beyond the authority granted to municipalities by the Kanss Constitution, The Topeka Capital-Journal reported .

Theis wrote that the ordinance conflicts with the Kansas Cigarette and Tobacco Products Act, which sets 18 as the age of participation for selling or using products it regulates. He agreed with the plaintiffs’ argument that the harm caused to them by the ordinance exceeds the public interest in enacting the new age limits.

“The city is reviewing the decision and considering its options moving forward,” said Molly Hadfield, spokeswoman for Topeka’s city government.

The tobacco sales minimum age already is 21 in more than 270 municipalities in 18 states. Most of the Kansas City metro area increased the age in recent years, along with communities stretching from Iola in the southeast to Garden City in the west.

Theis rejected the businesses’ request to remove city officials from authority over their businesses or products, saying the possibility existed that some future local ordinance could be compatible with state law.