Supreme Court could soon rule on whether Ohio’s preemption power violates Home Rule Amendment

The Supreme Court of Ohio could soon decide whether the state’s preemption power violates the Ohio Home Rule Amendment and limits the power of Buckeye State municipalities to regulate flavored tobacco.

The question stems from a lawsuit several Ohio cities filed challenging a state law that bars them from imposing stricter local tobacco laws.

Now, a Columbus think tank has jumped into the fray and is asking the state’s highest court to uphold Ohio’s broad preemption power, saying that the text and history of the Ohio Home Rule Amendment and the structure of the state’s Constitution limit the police powers of Buckeye State municipalities. The Buckeye Institute, in an amicus brief, argues that the state is supreme in matters of general concern and that state laws preempt local regulations and, therefore, do not violate Ohio’s Home Rule Amendment.

“Before Ohio adopted its 1912 Constitution, the meaning of the phrase ‘general laws’ was well-understood as meaning a law of statewide effect,” David C. Tryon, director of litigation at The Buckeye Institute, said in a release. “And policy arguments about the pros and cons of municipal home rule do not change that understanding or the meaning of the Ohio Constitution.”

On Dec. 12, 2022, Columbus officials passed an ordinance to ban the sale of flavored tobacco products, allow the city’s Department of Public Health to enforce the municipal tobacco laws and establish civil penalties, including fines and license revocation, for violators. The sales ban took effect on Jan. 1, 2024.

Two days after Columbus passed its ordinance, state lawmakers passed a measure to bar local regulation of tobacco products. Republican Gov. Mike DeWine vetoed Revised Code 9.681 on Jan. 5, 2023. Lawmakers passed the measure for a second time on June 30, 2023, and the governor again vetoed it on July 3, 2023.

“In the absence of an effective and comprehensive statewide flavored tobacco ban (including menthol) — which is this administration’s preferred policy approach — local government bans are essential because they reduce access to flavored tobacco and nicotine alternative products and interrupt the cycle of addiction,” the governor said in vetoing the measure. “The removal of local regulation would encourage youth nicotine addiction and immediately undo years of progress to improve public health, which is why a similar provision was previously vetoed.”

Lawmakers again overrode the veto, with the Senate voting in January 2024. On April 9, 2024, a group of more than 20 cities, including Athens, Columbus, Dublin, Springfield, and Toledo, challenged the state law.

A Franklin County Court of Common Pleas ruled in the cities’ favor, and a state appeals court affirmed that ruling in July 2025, saying the state law is “unconstitutional for its blatant disregard of the Home Rule Amendment” and prompting the state to appeal to the Supreme Court.

“Although the state retains great discretion in its authority to regulate tobacco, R.C. 9.681 exceeds this discretion by excluding municipalities from issuing their own rules and regulations,” the appeals court ruled.

“The Home Rule Amendment overtly established a role for municipalities in such regulatory matters because they oftentimes face problems the state, as a whole, does not,” the court added. “By prohibiting cities from protecting their residents from the lethal scourge of tobacco use, the statute here undermines the fundamental principle of the Home Rule Amendment that the government closest to the people serves the people best.”

However, The Buckeye Institute, which filed its brief with Nathaniel M. Fouch, assistant professor of law at Capital University Law School, contends that a plain reading of the phrase “general law” means a law that operates equally and uniformly across the state. The Home Rule Amendment’s text, as it evolved during Ohio’s 1912 Constitutional Convention, indicates that the amendment was intended to give municipalities general police powers, subject to the General Assembly’s override.

The group cited a court ruling from 1915 that found, “the authority of the state is supreme over the municipality and its citizens as to every matter and every relationship not embraced within the field of local self-government.”