PHILADELPHIA – The City of Philadelphia is now barred by an injunction from enforcing its ban on flavored cigar sales, after a federal judge found that Pennsylvania state law pre-empted the City’s ordinance governing the matter.
A Nov. 13 ruling by the U.S. District Court for the Eastern District of Pennsylvania and Judge Gene E.K. Pratter granted an injunction requested by the Cigar Association of America and fellow plaintiffs ITG, Swedish Match and Swisher International.
The case began as an ordinance sponsored by Philadelphia City Councilman Curtis Jones Jr., which sought to prevent kids and teens, especially those in low-income and minority neighborhoods, from being able to purchase flavored cigars – limiting their sale to stores where only adults could purchase them, as non-flavored products can be sold anywhere, and further banned the sale of flavored e-cigarettes to minors.
Needless to say, the companies vigorously opposed the action, initially filing suit in the Philadelphia County Court of Common Pleas before the case was removed to the U.S. District Court for the Eastern District of Pennsylvania.
The companies argue a Pennsylvania state law pre-empted the City of Philadelphia’s ordinance.
“Pointing to 18 Pa.C.S. Section 6305’s repeated reference to minors, plaintiffs argue that its subject is ‘youth access to tobacco.’ The City responds that its subject matter is just the five narrow areas it expressly regulates, namely, selling tobacco to a minor, giving tobacco to a minor, selling tobacco in vending machines accessible to minors, selling loose cigarettes, and allowing customers to handle tobacco before purchase,” Pratter stated.
“The City argues that ‘case law demands that the Court construe any ambiguities in favor of municipal power and against pre-emption, thus calling for the narrowest reading of preemption that the statutory language allows.’ This is incorrect. The City confuses the standards for implied pre-emption and express pre-emption.”
The case, Pratter said, was instead one of express pre-emption in favor of the Commonwealth.
“In determining the scope of pre-emption, the Court must examine the range of plausible interpretations and choose the one that is most probable, not the reading most favorable to the municipality that just crosses the threshold of plausibility,” Pratter said.
“While both parties focus exclusively on subsection (a), that is only a small part of Section 6305. The Court must look to the entirety of Section 6305 to ascertain its subject. A complete examination of the provision confirms that its subject matter is ‘youth access to tobacco.”
Pratter admitted that “weighing the plaintiffs’ interest in conducting their lawful business against the City’s interest in combatting the negative health outcomes associated with smoking tobacco would be difficult indeed”, but deferred to the legislature’s intent.
“Courts will not second-guess the legislature’s determination that compliance with a valid statute is in the public interest…the General Assembly has determined that it is in the public interest to pre-empt enactments like the ordinance at issue in this case. This Court will not second-guess that judgment,” Pratter said.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-03220
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com