Philadelphia won’t enforce an ordinance against sales of flavored tobacco products and will void any related regulations in an agreement with members of the tobacco industry, after federal trial and appeals courts questioned the measure’s validity.
The consent order, including an injunction, was entered Tuesday by the U.S. District Court for the Eastern District of Pennsylvania.
The companies that sued the city—ITG Cigars Inc., Swedish Match North America LLC, and Swisher International Inc.—were likely to win their argument that Pennsylvania state law preempts the municipal ordinance, the district court said in November 2020 when granting a preliminary injunction.
The U.S. Court of Appeals for the Third Circuit approved the ban’s temporary halt in November 2021.
Philadelphia said it enacted the ordinance because it found that most young people who use tobacco products start with flavored ones, and that the problem is particularly acute in minority and low-income neighborhoods.
The Cigar Association of America Inc. and the companies challenged the ban in court. Under a preemption provision specific to Pennsylvania, municipalities can’t additionally regulate what the commonwealth’s tobacco sales statute already governs, they said. They argued that state tobacco restrictions with the same “subject matter” expressly block the city’s ban.
Philadelphia argued the subject matter wasn’t the same. But the courts disagreed.
In the settlement underlying the consent order, the trade group and tobacco companies said they would release their claims and forego damages and attorneys’ fees in exchange for the city’s agreement to stop enforcing the ban and withdraw the requirements.
The case differs from others involving flavored-tobacco bans because of the state-specific preemption issue.
Michael Bloomberg has campaigned and given money in support of a ban on flavored e-cigarettes and tobacco. Bloomberg Law is operated by entities controlled by Michael Bloomberg.
Hangley Aronchick Segal Pudlin & Schiller represented the association and the companies. The City of Philadelphia Law Department and Richard Feder, who practices in Philadelphia, represented the city.
The case is Cigar Ass’n of Am., Inc. v. City of Philadelphia, E.D. Pa., No. 2:20-cv-03220, consent order 3/8/22.
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