Stores with roll-your-own machines let customers use them to produce cartons of cigarettes for about half the cost of what they’d pay for retail smokes. House Bill 2565, passed during the special legislative session this year, would begin taxing those cigarettes like others on July 1.
The group filing the lawsuit argues that the legislation raises taxes and therefore should have required a two-thirds vote to pass the Legislature. It passed 27-19 in the Senate.
“Most of our retailers would go out of business because of the tax increase,” said Bea Gonzlez, spokeswoman for RYO Machine, the Ohio-based manufacturer of the roll-your-own machines.
The lawsuit was filed last week in Franklin County by RYO Machine, the Benton County business 1/2 Price Smokes and a Franklin County roll-your-own customer. Court documents say plaintiff Dana Henne uses the roll-your-own machines because her arthritis makes it difficult for her to manually roll smokes.
Jason Mercier of the Washington Policy Center, which supports a supermajority requirement for tax increases, said the new lawsuit could force the state Supreme Court to rule on the requirement’s constitutionality. Previous court challenges have failed, with courts ruling that plaintiffs didn’t have legal standing to sue.
“The only way that you can actually really have standing to change this is if the Legislature was to enact a tax without the two-thirds and someone was harmed by that, and that’s what you see with the roll-your-own case,” Mercier said. Supporters of taxing roll-your-owns as retail cigarettes say the law closes a loophole rather than imposing a new tax.
“As technology changes, the Legislature is capable of saying: ‘This is a cigarette, and this should be taxed like a cigarette,’ ” said T.K. Bentler, who lobbies for about 4,000 mom-and-pop convenience stores as executive director for the Washington Association of Neighborhood Stores. Defendants include officials from the state Department of Revenue and the Liquor Control Board. The roll-your-own group also filed for a preliminary injunction, which would postpone the enforcement of the law.
