In the past few years, 15 municipalities on the Kansas side of the KC metro area have passed ordinances restricting tobacco sales to people 21 and over.
Now a court ruling in a Shawnee County lawsuit is calling into question whether those ordinances are legal.
A vape shop and a tobacco retailer prevailed in their suit last month against Topeka's Tobacco 21 ordinance, successfully arguing that it violated the Kansas Constitution.
Robert "Tuck" Duncan, the attorney who represented them, said it could lead to more suits in other parts of the state.
“I’m in conversations with folks about duplicating our Shawnee County efforts elsewhere,” Duncan said.
Duncan wouldn't say where, but possible targets include Overland Park, Kansas City, Kan.; Olathe, Lenexa, Leavenworth or Prairie Village, all of which have Tobacco 21 ordinances.
The Shawnee County case hinged on the limits of the "home rule" principle in the Kansas Constitution, which allows cities and counties to enact their own ordinances as long as they don't directly conflict with state law.
Tobacco 21 supporters say that state law only prohibits retailers from selling tobacco to people under 18. Tobacco 21 ordinances, therefore, are more stringent than state law, but don't conflict with it.
But Duncan said Topeka's Tobacco 21 ordinance did conflict because the tobacco licenses that the state of Kansas issues to retailers allow them to sell to people 18 and up.
District court judge Franklin Theis ruled for Duncan's clients and issued a permanent injunction prohibiting Topeka from enforcing its ordinance. He wrote that the state law that governs tobacco enforcement in Kansas set 18 as a "bright line" between adults who are eligible to purchase and minors who are not.
Mark Greenwold, an attorney for the Campaign for Tobacco Free Kids, and Mike Freiberg, an attorney with the Tobacco Control Legal Consortium at the Public Health Law Center in Minnesota, both said the ruling was highly unusual.
Greenwold and Freiberg said there are hundreds of Tobacco 21 ordinances across the country. Only a few have been challenged in court and this might be the first one challenged successfully.
"It’s certainly possible it will embolden people who are opposed to it,” Freiberg said.
Tom Palace, a lobbyist for convenience store owners in Kansas called the Theis ruling "extremely helpful" to the industry, but wouldn't say whether any of his clients are considering filing similar suits.
“Our members were happy to hear the results of the court case and they’re taking it under advisement at this point,” Palace said.
Healthy KC, a partnership between the Greater Kansas City Chamber of Commerce and Blue Cross and Blue Shield of Kansas City, has led the effort to spread the Tobacco 21 ordinances that have spread through most of the Kansas City metro area.
Scott Hall, the chamber's senior vice president for civic and community engagement, said the group was "surprised and disappointed" by Theis' ruling.
Hall said his group consulted with local and national legal experts on the Tobacco 21 campaign and "consistently received feedback that it was legal in both” Kansas and Missouri. He also pointed to a Dec. 28, 2017 opinion from Kansas Attorney General Derek Schmidt on Tobacco 21 that sharply conflicted with Theis' ruling.
Hall said preliminary data suggests Tobacco 21 ordinances are working as intended to lower teen smoking rates, which should lead to lower health care costs.
So his group plans to push forward.
“In light of Judge Theis' ruling last week we’re having conversations right now with local and national experts on the subject to assess next steps, which could include an appeal,” Hall said.
Duncan said an appeal could actually work against other cities that have enacted Tobacco 21.
Right now Theis' ruling only applies to Shawnee County. But if the Kansas Court of Appeals rules for Duncan's clients, it would effectively wipe out all Tobacco 21 ordinances in Kansas.
“If there is an appeal, then we’ll get a statewide decision and I believe Judge Theis will be upheld, because it’s a very well-reasoned order,” Duncan said.
But Greenwold said Schmidt is right and Theis got it wrong.
The City of Topeka would have a good chance on appeal, he said, and tobacco sellers in other parts of the state should think twice before they launch similar lawsuits.
"I doubt they would be successful if they tried,” Greenwold said.
Tobacco 21 continues to spread in Kansas, with Parsons passing it Monday. But the Shawnee County ruling complicates the movement.
Chris Tilden, the director of community health for the Lawrence-Douglas County Health Department, said a group from the local Boys and Girls Club is urging the Lawrence City Commission to enact its own Tobacco 21 ordinance.
That conversation has changed from one that's purely about public health to one that also could land the city in court.
“If the city of Lawrence has decided to take up this discussion, they’ll have to understand the rationale behind the ruling in Topeka," Tilden said, "and weigh that against other legal analysis that has been done.”