Flavored tobacco products are still allowed in Philadelphia despite the city’s attempt to ban them.
Flavored tobacco products can continue to be sold in Philadelphia, at least for now, as a federal appeals court barred the city from enforcing a ban on the sale of such products following a lawsuit filed by the Cigar Association of America and cigar companies ITG Cigars Inc., Swedish Match North America LLC, and Swisher International Inc and a subsequent appeal by the city.
In their lawsuit, the plaintiffs said that under a preemption provision specific to Pennsylvania, municipalities cannot additionally regulate what the commonwealth’s tobacco sales statute already governs. As such, state tobacco restrictions with the same “subject matter” expressly block the ban.
Philadelphia’s 2019 ordinance, which was adopted before the US Food and Drug Administration (FDA) prosed a menthol cigarettes and flavored cigar ban, banned sales of tobacco products with a characterizing flavor other than tobacco, but exempted tobacco product distribution businesses, defined as institutions closed to minors that derive most of their sales from tobacco products.
In its appeal, the city argued that Pennsylvania laws prohibiting the sales of tobacco products to minors and preempting any conflicting local ordinances did not bar it from restricting the places where adults could legally buy flavored cigars. But, the appeals court disagreed, saying that the ordinance also concerned youth access to tobacco and was actually adopted as part of the city’s efforts to fight that problem.
US Circuit Judge David Porter wrote, "Philadelphia found a state measure inadequate to deal with a problem and sought to impose its own additional requirements. The plain text of the preemption provision forbids it from doing so."
The court also found that the companies would lose revenue that they could not recover later, as the city is immune to suit for money damages under the state’s Tort Claims Act.