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Third Circuit Snuffs Out Philadelphia Ban on Flavored Tobacco Products

By Laura Temme, Esq. | Last updated on

The Third Circuit Court of Appeals recently held that Philadelphia could not enforce its ban on flavored tobacco products. The 2019 city ordinance aimed to combat spikes in tobacco use by minors, but the Third Circuit sided with cigar manufacturers and distributors in concluding that state law preempted the ban.

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City Ordinance Attempts to Curb Tobacco Use in Kids

Flavored cigarettes (except menthol) were nationally banned in 2009 as part of the Family Smoking Prevention and Tobacco Control Act. In addition, several states and hundreds of municipalities have passed their own restrictions on flavored tobacco and e-cigarettes. And in 2019, Massachusetts became the first state to ban all flavored tobacco products—including menthol cigarettes—with the goal of curbing increased tobacco use by minors. In April 2021, the U.S. Food & Drug Administration proposed banning menthol cigarettes and all flavored cigars for the same reason.

State law in Pennsylvania prohibits minors from purchasing tobacco products. Philadelphia officials thus grew concerned when the city saw a sharp increase in the use of flavored tobacco products. In response, the city council unanimously passed Ordinance 180457 (the Flavored Cigar Ordinance), prohibiting the sale of tobacco products with "characterizing flavors." The city defined characterizing flavors as "any taste or aroma other than the taste or aroma of tobacco"—such as fruit, mint, vanilla, or candy flavors.

Unsurprisingly, the Cigar Association of America and several cigar manufacturers and distributors, including Swisher Sweets, filed for an injunction. Judge Gene Pratter of Pennsylvania's Eastern District granted the injunction on November 13, 2020, concluding that the plaintiffs were likely to succeed in arguing that the ordinance was preempted by state law.

Third Circuit Finds Flavored Tobacco Ordinance Overstepped

The Third Circuit Court of Appeals agreed, noting that the preemption clause of the state's tobacco statute expressly preempts "any local ordinance or rule concerning the subject matter" in Title 18 Section 6305 of the state's criminal statute on the sale of tobacco products.

Philadelphia argued the preemption clause only applied to the specific areas addressed in the criminal statute:

  • Selling tobacco to minors
  • Furnishing tobacco to minors
  • Placing vending machines containing tobacco products in a location accessible to minors
  • Displaying or offering single cigarettes
  • Displaying or offering tobacco products that customers can physically handle before purchasing.

But both the district court and the Third Circuit found this argument unpersuasive. "The word 'subject' signals that we must look beyond the specific prohibitions contained in section 6305 [of the state's criminal statute] to the 'general matter of concern' of the statute," U.S. Circuit Judge David Porter wrote for the panel.

The Third Circuit agreed with Judge Pratter's conclusion that the common subject matter of Section 6305 was youth access to tobacco. Therefore, the city's regulation was directly contrary to the preemption clause.

"Philadelphia found a state measure inadequate to deal with a problem and sought to impose its own additional requirements," Judge Porter wrote. "The plain text of the preemption provision forbids it from doing so."​

The Third Circuit thus upheld the district court's preliminary injunction, though the decision is "non-precedential," meaning that it cannot be cited as precedent to influence other cases. 

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