Philadelphia Tobacco Flavor Ban to Stay on Hold During Challenge

Nov. 24, 2021, 5:22 PM

Tobacco companies may continue to sell flavored products in Philadelphia while a legal challenge to a ban plays out because members of the industry are likely to win their argument that Pennsylvania state law preempts the municipal ordinance, the Third Circuit ruled Wednesday.

And the companies that sued the city—ITG Cigars Inc., Swedish Match North America LLC, and Swisher International Inc.—adequately showed the trial court that they would likely suffer irreparable harm without a preliminary injunction, Judge David J. Porter said for the appeals court in an unpublished opinion. A cigar trade association was also among the challengers.

The case differs from others involving flavored-tobacco bans because of the state-specific preemption issue.

Philadelphia enacted the ordinance becuase 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 Pennsylvania ban.

Philadelphia argued the subject matter wasn’t the same.

But the appeals court disagreed. Both concern youth access to tobacco, Porter said. “Philadelphia’s acknowledgment in its opening brief ‘that one purpose of the Ordinance was to deter youth smoking,’ combined with the fact that what the Ordinance actually does is restrict the ability of minors to access tobacco, fatally undermines its claim that the Ordinance does not so much as ‘concern’ youth access to tobacco,” he said.

And the district court acted within its discretion in finding the companies would lose revenue that they couldn’t recover later, given that the city is immune to suit for money damages under the state’s Tort Claims Act, he said.

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.

Judges Michael A. Chagares and Jane R. Roth also served on the panel.

Hangley Aronchick Segal Pudlin & Schiller represents the cigar companies and the association.

The city is represented by its law department and Richard G. Feder, who practices in Philadelphia.

The case is Cigar Ass’n of Am., Inc. v. City of Phila., 3d Cir., No. 20-3519, unpublished 11/24/21.

To contact the reporter on this story: Martina Barash in Washington at mbarash@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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