Can my Arkansas city zone or limit where vape shops can open?

Plain-English summary

Representative Carlton Wing asked the AG how much room Arkansas cities and counties have to regulate vape shops. The answer: substantial, but bounded by state and federal preemption.

The general rule. Arkansas cities, counties, and municipalities have "police power" under state law, which is a "plenary duty [exercised] in the interest of the public health and safety of its inhabitants" (Phillips v. Town of Oak Grove, Ark. Sup. Ct. 1998). They can use that power to regulate vape shops by ordinance for public health, safety, and welfare. But three limits apply:

1. The regulation cannot be preempted by or in conflict with state or federal law.
2. It cannot be unreasonable, arbitrary, or capricious.
3. It cannot exceed the city's statutory or constitutional authority.

State preemption. Arkansas tobacco control laws expressly preempt local regulations of vapor and e-liquid products that are "more restrictive" than the Arkansas Tobacco Products Tax Act of 1977 (A.C.A. § 26-57-201 et seq.) or the Arkansas Tobacco Control rules. So local governments CANNOT:

• Change the minimum age to purchase or possess vapor and e-liquid products. Statewide, the minimum age is 21 (defined in § 26-57-203(19)(A) and § 5-27-227).
• Impose stricter child-resistant packaging requirements on e-liquid containers.
• Block, hinder, or override the Arkansas Tobacco Control Director's or Board's authority to issue permits, assess civil penalties, or inspect/investigate businesses selling vapor and e-liquid products.

The Tobacco Control Director has authority over how many permits to grant, where, and to whom (A.C.A. § 26-57-216). But that authority is about permits, not about zoning. Local governments can zone the locations of vape shops as long as the zoning does not interfere with Tobacco Control's permit authority.

Federal preemption. Federal law (21 U.S.C. § 387p) preempts states from regulating tobacco product standards, premarket review, adulteration, misbranding, labeling, registration, manufacturing standards, or modified-risk products. But it does NOT preempt regulation of distribution, possession, age restrictions, advertising/promotion, or use of vapor and e-liquid products. Local Arkansas regulations within the un-preempted areas are federally permitted, subject to state preemption rules above.

Zoning. Zoning ordinances are legislative and presumed valid. A court reviews them only for whether they are arbitrary, capricious, or unreasonable. A local government can zone vape shops to mirror the zoning of similar businesses (often clustered with tobacco retail, package liquor, or adult-use businesses). Arkansas Tobacco Control cannot issue a permit for a vape shop at an "address [that is] not zoned appropriately for the business seeking to secure the permit" (A.C.A. § 26-57-216), so state law expressly contemplates local zoning of vape shop locations.

Limits on zoning. A zoning ordinance must have a rational basis (Craft v. City of Fort Smith) and cannot violate equal-protection or substantive-due-process principles. The AG flagged that he lacked sufficient facts to assess any specific ordinance.

What this means for you

City councils and county quorum courts

You have meaningful authority to regulate vape shop locations through zoning, but limited authority to regulate the products themselves. A safe regulatory framework includes:

• Zoning ordinances that group vape shops with similar businesses and limit them to particular zoning categories (commercial, mixed-use, etc.).
• Distance requirements from schools, parks, churches, or residential zones, if rationally tied to public health/safety.
• Local business licensing requirements (general business license, not a vape-specific license that would conflict with Tobacco Control's permitting).

Avoid:
- Setting a local minimum age higher than 21.
- Imposing local packaging or labeling rules.
- Creating local inspection regimes that overlap or conflict with Arkansas Tobacco Control.

When drafting, document the public-health/safety basis for any restriction. Empty findings are easier to overturn under the arbitrary-and-capricious standard.

City and county attorneys

Run any proposed vape-shop ordinance through three filters: state preemption (§ 26-57-267 and § 26-57-259(a)(2)(A)), federal preemption (21 U.S.C. § 387p(a)(2)), and constitutional reasonableness. Document your reasoning. The Arkansas Supreme Court in Municipality of Helena-W. Helena v. Weaver and Phillips v. Town of Oak Grove will void ordinances that conflict with state law or lack a rational basis.

If your city wants to go further than state law allows, the right answer is to lobby for state-law amendments, not to push the limits of preempted local authority.

Vape shop owners and operators

When opening or relocating a vape shop, three regulatory layers apply:

1. State Tobacco Control permit. Required for the business itself; applied for through the Arkansas Tobacco Control Board.
2. Local zoning approval. Confirm the address is in a zone that allows vape retail. State law requires this match before Tobacco Control will issue a permit.
3. Local business license. Most cities have a general business-license process; comply with that.

If the city imposes restrictions you think exceed its authority (a higher local age limit, stricter packaging, etc.), you have grounds to challenge under state preemption.

Public health advocates

The opinion is a useful playbook for engaging with local government on vape shop concentration, especially near schools. Local governments can zone, set distance requirements, and condition operations on rational public-health bases. But they cannot raise the age limit or change product rules; those are state-law levers.

If you want stricter product rules statewide, the Arkansas Tobacco Products Tax Act (§ 26-57-201 et seq.) and the Tobacco Control Board's rules are the levers. Engage with the legislature or the Board, not city councils, for product-level changes.

Zoning officials

Vape shops can be treated like comparable businesses (tobacco retail, adult-use stores) for zoning purposes. Make sure the zoning regime has a rational basis: distance from schools, mix of land uses, traffic patterns. Ad hoc denials without articulated criteria invite legal challenge.

Common questions

Can my city ban vape shops entirely?
Probably not. A zoning ordinance that effectively excludes a lawful business from the entire city raises both preemption and arbitrary-and-capricious concerns. Zoning regulates location, not existence. A complete ban would be vulnerable to challenge.

Can my city require vape shops to be at least 1,000 feet from a school?
Most likely yes. Distance requirements from schools are a common zoning tool with a rational public-health basis. Make sure the requirement is grounded in findings (proximity-to-minors concerns) and applied consistently with similar businesses (tobacco retail, alcohol).

Can I set a higher minimum age in my city than 21?
No. State law (A.C.A. §§ 26-57-203(19)(A), 5-27-227) sets the minimum age at 21 statewide. Local raises to 23 or 25 would be preempted under § 26-57-267.

Can I require child-resistant packaging stricter than state rules?
No. A.C.A. § 26-57-254(c)–(d) sets the packaging standards, and § 26-57-267 expressly preempts local rules that are more restrictive.

Can my city make vape shops obtain a special use permit?
Yes, if your zoning ordinance imposes special-use-permit requirements for similar businesses. Make sure the criteria are objective (distance, hours, signage) and not standardless.

A vape shop just opened across from my elementary school. Can I get the city to do something?
Possibly, depending on local zoning. If the city's zoning allowed the shop's address, you cannot retroactively block it. But you can ask the city council to amend the zoning ordinance for future locations to require greater distance from schools. Push for ordinance changes through public comment, not enforcement against the existing shop.

How do I find my city's vape shop zoning rules?
Start with your city's zoning code (often available on the city's website) under "tobacco retail," "vapor products," "adult-use businesses," or similar headings. Your city clerk or planning department can identify the controlling sections.

Background and statutory framework

Arkansas's tobacco control framework starts with the Arkansas Tobacco Products Tax Act of 1977 (A.C.A. § 26-57-201 et seq.) and the Arkansas Tobacco Control rules promulgated under that Act. The Act regulates manufacture, sale, storage, distribution, and permitting of tobacco and vapor products statewide. Section 26-57-267 is the express preemption clause: local regulations "more restrictive" than the Act or its rules are preempted.

Vapor products and e-liquid products are defined broadly in § 26-57-203(12) and § 26-57-203(34). The minimum age (21) is in § 26-57-203(19)(A) and § 5-27-227.

Federal preemption is in 21 U.S.C. § 387p(a)(2). Subsection (A) preempts certain product-standards and labeling rules. Subsection (B) explicitly does NOT preempt state regulation of distribution, possession, age restrictions, advertising/promotion, or use.

The Arkansas Supreme Court's police-power and zoning cases provide the constitutional layer:

• Phillips v. Town of Oak Grove, 333 Ark. 183, 968 S.W.2d 600 (1998), affirmed cities' plenary police power for public health and safety, and articulated the arbitrary-and-capricious standard.
• Dabbs v. State, 39 Ark. 353 (1882), is the foundational state police-power case.
• Municipality of Helena-W. Helena v. Weaver, 374 Ark. 109, 286 S.W.3d 132 (2008), confirmed Ark. Const. art. 12, § 4 voids ordinances conflicting with state statutes.
• City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 916 S.W.2d 95 (1996), defined "arbitrary" and "capricious" in zoning review.
• Baldridge v. City of N. Little Rock, 258 Ark. 246, 523 S.W.2d 912 (1975), same area.
• Tompos v. City of Fayetteville, 280 Ark. 435, 658 S.W.2d 404 (1983), held unexercised state authority does not conflict with a local ordinance.
• Bolen v. Washington Cnty. Zoning Bd. of Adjustments, 2011 Ark. App. 319, 384 S.W.3d 33 (Ark. Ct. App.), and PH, LLC v. City of Conway, 2009 Ark. 504, 344 S.W.3d 660, plus City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981), confirmed zoning is legislative in nature.
• Craft v. City of Fort Smith, 335 Ark. 417, 984 S.W.2d 22 (1998), reviewed zoning under equal protection and substantive due process.

All citations are to state appellate courts (Arkansas Supreme Court and Arkansas Court of Appeals; the reporter abbreviations confirm).

Citations

• A.C.A. § 14-43-601, § 14-54-101, § 14-55-102 (city authority and ordinance limits)
• A.C.A. § 26-57-201 et seq. (Arkansas Tobacco Products Tax Act of 1977)
• A.C.A. § 26-57-203(12) (e-liquid definition)
• A.C.A. § 26-57-203(19)(A) (minor definition, age 21)
• A.C.A. § 26-57-203(34) (vapor product definition)
• A.C.A. § 26-57-216 (Tobacco Control permit authority)
• A.C.A. § 26-57-254(a) (Director inspection authority)
• A.C.A. § 26-57-254(c)–(d) (child-resistant packaging standards)
• A.C.A. § 26-57-257(j) (Director inspection authority)
• A.C.A. § 26-57-259(a)(2)(A) (preemption clause)
• A.C.A. § 26-57-266 (Director investigation agents)
• A.C.A. § 26-57-267 (express preemption of more restrictive local regulation)
• A.C.A. § 5-27-227 (minor sales restrictions)
• 21 U.S.C. § 387p(a)(2)(A), (B) (federal preemption framework)
• Ark. Const. art. 12, § 4 (state-law supremacy over conflicting ordinances)
• Phillips v. Town of Oak Grove, 333 Ark. 183, 189–90, 968 S.W.2d 600, 603–04 (1998)
• Dabbs v. State, 39 Ark. 353, 357 (1882)
• Municipality of Helena-W. Helena v. Weaver, 374 Ark. 109, 114, 286 S.W.3d 132, 136 (2008)
• City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 337–40, 916 S.W.2d 95, 97–99 (1996)
• Baldridge v. City of N. Little Rock, 258 Ark. 246, 254–55, 523 S.W.2d 912, 916–17 (1975)
• Tompos v. City of Fayetteville, 280 Ark. 435, 437–38, 658 S.W.2d 404, 406 (1983)
• Bolen v. Washington Cnty. Zoning Bd. of Adjustments, 2011 Ark. App. 319, 12, 384 S.W.3d 33, 41
• PH, LLC v. City of Conway, 2009 Ark. 504, 11–12, 344 S.W.3d 660, 666–67
• City of Little Rock v. Breeding, 273 Ark. 437, 442, 619 S.W.2d 664, 667 (1981)
• Craft v. City of Fort Smith, 335 Ark. 417, 424–26, 984 S.W.2d 22, 26–27 (1998)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2023-087
October 2, 2023
The Honorable Carlton Wing
State Representative
2513 McCain Boulevard, Suite 208
North Little Rock, Arkansas 72116
Dear Representative Wing:
I am writing in response to your request for my opinion on questions concerning the
authority of political subdivisions to regulate vape shops. You have asked three questions,
some of which I have paraphrased.
1. Can a city, county, or other municipality limit, regulate, zone, or restrict a vape shop
located within its jurisdiction?
2. Does a city, county, or other municipality have limits on how it restricts, regulates,
or zones a vape shop?
3. Do any current state laws provide guidance on this topic to our cities, counties, and
other municipalities?
RESPONSE
A city or county may limit, regulate, zone, or restrict a vape shop located within its
jurisdiction unless the regulation conflicts with state or federal law.
DISCUSSION
1. General authority. Arkansas law grants cities, counties, and other municipalities the
"police power", a "plenary duty [to be exercised] in the interest of the public health and
safety of its inhabitants." Consequently, a city, county, or other municipality may exercise
its police power to regulate vape shops by enacting ordinances to protect public health,
safety, and welfare. But a city, county, or other municipality cannot regulate vape shops
in a way that is: (1) preempted by or in conflict with state or federal law; (2) unreasonable,
arbitrary, or capricious; or (3) outside the scope of its statutory or constitutional authority.
I lack sufficient facts to assess whether the latter two apply here. But, under certain
circumstances more fully described below, state law restricts local governments from
regulating vape shops and the products they sell. Federal law does not generally preempt
states from regulating distribution, possession, age-restrictions, and "exposure to, access
to, the advertising and promotion of, or use of [vapor and e-liquid products]."
2. State law limits. Arkansas tobacco control laws expressly "preempt the enactment and
enforcement of any county, municipal, or other local regulation of the manufacture, sale,
storage, or distribution of vapor products…or e-liquid products that is more restrictive"
than the Arkansas Tobacco Products Tax Act of 1977, A.C.A. § 26-57-201 et seq., or the
Arkansas Tobacco Control rules.
Hence, the following local-government regulations would conflict with state law:
- Any change to the minimum age to purchase or possess vapor and e-liquid
products;
- Changing the child-resistant packaging requirements concerning "e-liquid
containers" to a stricter standard; or
- Preventing or inhibiting the Arkansas Tobacco Control Director or Board from
issuing permits, assessing civil penalties, or inspecting or investigating businesses
that sell vapor and e-liquid products during regular business hours.
Under A.C.A. § 26-57-216, the Arkansas Tobacco Control Director and Board are
authorized to "determine…[t]he number of permits to be granted in the state… [t]he
locations thereof…[and the] persons to whom they are to be granted." But this authority
pertains to tobacco control permits. That is, the statute does not prevent local governments
from zoning or otherwise regulating the location of vape shops so long as the regulation
does not interfere with Arkansas Tobacco Control's authority to issue and regulate
Arkansas Tobacco Control permits. Further, state statutes contemplate the zoning of vape
shops: Arkansas Tobacco Control cannot issue a permit to a vape shop whose "address [is]
not zoned appropriately for the business seeking to secure the permit."
3. Zoning limits. Zoning ordinances are "legislative in nature," and presumed valid and
constitutional as a matter of law. Therefore, a court's review of zoning ordinances is
limited to whether the decision to zone or rezone was "arbitrary, capricious, or
unreasonable." Under this standard, a political subdivision would need to show a
reasonable basis for enacting or amending the zoning ordinance. A zoning ordinance need
not "treat all people or activities similarly…so long as there is a rational basis for the
distinction."
While a county or city has the authority to zone or rezone vape shops to mirror the zoning
of similar businesses, a county or city should review the language of any zoning ordinance
to ensure it comports with the constitutional requirements above and does not conflict with
state or federal law. I lack sufficient facts to determine whether any specific ordinance
violates constitutional law or conflicts with state or federal law.
Assistant Attorney General William R. Olson prepared this opinion, which I hereby
approve.
Sincerely,
TIM GRIFFIN
Attorney General