Synopsis
Cigar trade associations successfully challenged Philadelphia’s flavored tobacco sales restriction on state-level preemption and constitutional grounds.
Why It Matters for Public Health
This case is yet another challenge to a local ordinance restricting the sale of commercial tobacco products. However, it is unique in that the plaintiffs argued that the ordinance was preempted by state rather than federal law. Some states have state-level laws that limit a local jurisdiction’s ability to enact different, or stricter, policies. The Cigar Association argued in this case that Philadelphia was preempted from adopting its own restriction on the sale of flavored products. Preemption has been a common tactic by the tobacco industry to prevent local jurisdictions from determining which policies are most protective of the health of their residents.
Background
On December 18, 2019, the City of Philadelphia enacted a flavored tobacco product sales restriction covering all flavored tobacco products, including flavored cigars and rolling tobacco. The ordinance contained an exemption for businesses that prohibit entry to minors, do not serve food or beverages, and derive 90 percent or more of their revenue from the sale of tobacco products.
Proceedings
District Court
On June 18, 2020, the Cigar Association of America, ITG Cigars, Swedish Match North America, and Swisher International filed a complaint in Pennsylvania state court against the City of Philadelphia over its flavored tobacco products sales ordinance. The complaint contained several counts, including:
- The ordinance is expressly preempted by two separate state laws that regulate tobacco sales to minors and contain express preemption provisions;
- The ordinance violates the industry’s due process rights because its definition of “characterizing flavor” is ambiguous and does not provide guidance to sellers as to which products are prohibited and which are permitted;
- The ordinance violates the industry’s due process rights because it is not rationally related to the goal of addressing youth sales; and
- The ordinance violates the Pennsylvania Constitution because it is vague and ambiguous.
In addition to the request that the court issue declaratory relief on the preemption and constitutionality claims, the industry plaintiffs moved for a preliminary injunction to prevent enforcement of the ordinance pending judicial review. On July 1, 2020, the City of Philadelphia filed a notice of removal to federal court in the Eastern District of Pennsylvania. A hearing on the motion for preliminary injunction occurred on October 7, 2020. On November 13, 2020, the district court granted the motion for the preliminary injunction, finding in part that the industry plaintiffs were likely to succeed on the merits of their state preemption claims.
Third Circuit
On December 15, 2020, the City of Philadelphia filed an interlocutory appeal of the district court’s ruling to the Third Circuit. The City of Philadelphia submitted its opening brief on February 17, 2021, and the Cigar Association submitted its brief on April 2, 2021. Oral argument was held on June 23, 2021. The Third Circuit issued its judgment affirming the lower court’s decision on November 24, 2021, opining that the plaintiffs were likely to succeed on the merits of their claim that state law preempted Philadelphia’s ordinance. The case was remanded to the lower court.
Litigation Status (CLOSED)
On February 28, 2022, the parties settled and requested a permanent injunction consistent with the settlement agreement. The parties agreed that the ordinance “is preempted by the current version of 53 Pa. C.S. § 301.” The court ordered the permanent injunction on March 8, 2022.