SOUTH PORTLAND — With city councilors moving forward on an ordinance that would ban the sale of flavored tobacco products, two attorneys laid out grounds for how the law would be contested.

“A total ban, such as the draft ordinance presently before the Council, would be unlawful if enacted,” attorneys Peggy McGehee and Joseph Talbot of Perkins Thompson said in a March 26 letter to the council.

Working on behalf of Portland Smoke & Vape owners Anthony Scott, Mark Scott and Chris Jackson, the attorneys said the city is overstepping state and federal law with a potential ban on the sale of flavored tobacco products used in vaporizers and electronic cigarettes.

In a workshop Tuesday, councilors moved the ordinance ahead to full council deliberation, a public hearing, and vote. It was revised from the ordinance presented at a March 5 workshop to more clearly define flavored tobacco, how it is also illegal to furnish tobacco products to minors, and how fines would be assessed and collected.

Mayor Claude Morgan on Wednesday said he expects a vote by the middle of May. The city must give 30 days’ notice to all licensed tobacco sellers before a first reading can be conducted.

Morgan said the ban affects only the cartridges, or “pods,” used in vaporizers and electronic cigarettes.

“We are not banning the big devices, we are not tackling that,”  he said.

Portland Smoke & Vape, which opened last October at 585 Broadway, near Mahoney Middle School, has been the focal point of the ban in the city. This week, attempts to ban the sale of flavored tobaccos also were heard in the State House in Augusta.

On Thursday, state Sen. Rebecca Millett, D-Cape Elizabeth, was joined by local students to speak in favor of LD 1190, a bill now in front of the Legislature’s Health and Human Services Committee. South Portland Democratic Rep. Victoria Morales is a co-sponsor of the bill.

While noting the store owners carefully follow state laws prohibiting tobacco sales to anyone under age 21, McGehee and Talbot said the proposed ban oversteps state and federal laws regulating sales of tobacco products.

McGehee and Talbot also said the city ordinance would not stand because it is “arbitrary and unreasonable,” given its intent to prevent sales to minors that are already illegal.

In six years of doing business, first in Portland, the store owners have not been cited for sales to minors, they said.

“They consider it a drawback that (Mahoney) is within sight of their store, not an advantage,” the attorneys said.

Also, attorneys said state laws specifically allow the sale of flavored tobacco products, meaning the city does not have the right to ban the sales.

City Corporation Counsel Sally Daggett told councilors March 5 she wrote the ordinance after researching similar, targeted bans on flavored inserts in Providence, Rhode Island, New York City and Chicago. She admitted that attempts to completely ban vapes or e-cigarettes have not withstood legal challenges.

But McGehee and Talbot contend the city’s proposed ordinance differs from those Daggett cited, and supersedes a 2009 federal law that specifically allows the sale of flavored tobacco products to adults.

The attorneys said bans in cities cited by Daggett were different because they specifically target specialty tobacco stores, as opposed to the entire municipalities.

McGehee and Talbot also asked the city refer the proposed ordinance to Maine Attorney General Aaron Frey’s office for an opinion on whether it “would contravene state law.”

David Harry can be reached at 780-9092 or dharry@theforecaster.net. Follow him on Twitter: @DavidHarry8.

Attorneys working for owners of a South Portland tobacco store said an ordinance banning the sale of flavored tobacco products violates state and federal laws.

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