## Facts

- Under the Kansas Constitution’s home-rule provision, the City of Topeka enacted Ordinance No. 20099, amending § 5.7 of the city’s Uniform Public Offense Code.
- The ordinance made it unlawful for any person to (1) sell, furnish, or distribute cigarettes, electronic cigarettes, tobacco products, or liquid nicotine to any person under 21 years of age, or (2) purchase those products if the purchaser is under 21.
- Kansas state law, the Kansas Cigarette and Tobacco Products Act, K.S.A. 79-3301 et seq., regulates tobacco products through licensing and taxation and includes age-based restrictions.
- At the time, the Act prohibited sales to, and purchases by, persons under 18, but contained no express statement barring cities from setting a higher minimum age.
- DWAGFYS Manufacturing, Inc., d/b/a The Vapebar Topeka, and Puffs ’n’ Stuff, L.L.C. (retailers of tobacco and/or vaping products) sued the City of Topeka, claiming the ordinance was invalid because state law preempted the area.
- The Shawnee County District Court agreed with the retailers, held the ordinance preempted by the Act, and issued a permanent injunction against enforcement.
- The City of Topeka appealed to the Kansas Supreme Court.

## Issues

1. Did the Kansas Cigarette and Tobacco Products Act clearly manifest legislative intent to preempt municipal ordinances regulating the minimum age for the sale and purchase of cigarettes, e-cigarettes, and related products?
2. If the Act did not preempt the field, did Topeka’s ordinance conflict with the Act by raising the minimum age from 18 to 21?

## Decision

- The Kansas Supreme Court reversed the district court.
- The court held the Kansas Cigarette and Tobacco Products Act did not clearly manifest legislative intent to preempt municipal regulation of the minimum age for tobacco and vaping product transactions.
- The court held Ordinance No. 20099 did not conflict with the Act because it did not prohibit what the Act expressly authorized and did not authorize what the Act expressly prohibited.
- The permanent injunction was reversed, and the ordinance remained enforceable.

## Legal Principles

- Under Kansas home rule, a city may enact an ordinance on a subject also addressed by a uniform state law unless the Legislature clearly shows an intent to preempt the field or the ordinance conflicts with state law.
- Legislative intent to preempt must be clearly shown on the face of the statute; courts do not find field preemption by implication.
- When a statute does not preempt local action, an ordinance is invalid only if there is an actual conflict—meaning the statute expressly authorizes what the ordinance prohibits or expressly prohibits what the ordinance authorizes.
- A state statute setting an age floor (such as prohibiting sales to persons under 18) does not, without express statutory authorization, create an affirmative statewide right for those 18 and older to purchase or receive tobacco products free from additional local restrictions.

## Conclusion

The Kansas Supreme Court upheld Topeka’s ordinance raising the minimum age for selling and buying tobacco and vaping products to 21 because the Kansas Cigarette and Tobacco Products Act did not clearly preempt local regulation and the ordinance imposed a stricter age limit without contradicting any express statutory authorization or prohibition.


DWAGFYS Manufacturing, Inc. v. City of Topeka, 443 P.3d 1052 (2019)