On Friday, November 13, 2020, a federal district court entered a preliminary injunction against the City of Philadelphia’s Ordinance 180457, which purported to ban the sale of flavored tobacco products, with minor exceptions.  As in all cases where a preliminary injunction is entered, the court found that the Plaintiffs demonstrated a likelihood of success on the merits and would be irreparably harmed absent an injunction, and that the balance of the equities and the public interest weighed in favor of an injunction.

One of the Ordinance’s stated purposes was to reduce the consumption of tobacco products by minors. Pennsylvania law already prohibits the sale of tobacco to minors; nevertheless, the City concluded that existing measures were insufficient and passed the ban.  Plaintiffs, a group of cigar manufacturers, importers, and distributors, filed a complaint in the Philadelphia Court of Common Pleas seeking declaratory and injunctive relief, as well as money damages. The City removed the complaint to the Eastern District of Pennsylvania. Plaintiffs then moved the federal district court for a preliminary injunction.

The Plaintiffs originally argued that the Ordinance violated Plaintiffs’ right to substantive due process, that the Ordinance was unconstitutionally vague, and that the Ordinance was preempted.  Plaintiffs then dropped their federal constitutional claims for purposes of the preliminary injunction and relied exclusively on Pennsylvania state law preemption arguments.  They specifically cited to two Pennsylvania statutes previously passed by the state legislature as having preemptive effect:  53 Pa. C.S. § 301 (“§ 301 “) and Act No. 2018-42, Section 232-A (“Act 42”), codified at 72 P.S. § 232-A.

The court only considered the matter of § 301 preemption, and did not address Act 42.  Section 301 expressly preempts “any local ordinance or rule concerning the subject matter of 18 Pa.C.S. § 6305.” Section 6305, in turn, contains five prohibitions that all relate to tobacco:  (1) “sell[ing] a tobacco product to any minor;” (2) “fumish[ing], by purchase, gift or other means, a tobacco product to a minor;” (3) “locat[ing] or plac[ing] a vending machine containing a tobacco product in a location accessible to minors;” ( 4) “display[ing] or offer[ing] a cigarette for sale out of a pack of cigarettes;” or (5) “display[ing] or  offer[ing] for sale tobacco products in any manner which enables [a customer] … to physically handle tobacco products prior to purchase unless the tobacco products are located within the line of sight or under the control of a cashier or other employee during business hours, except[ing] … retail stores which derive 75% or more of sales revenues from tobacco products.” 18 Pa. C.S. § 6305.  The court noted that the Ordinance was passed specifically to further restrict youth access to tobacco products, and the court engaged in a careful analysis of state law to establish the scope of the Ordinance and the scope of 18 Pa. C.S. § 6305.  Because § 6305’s subject matter is “youth access to tobacco,” and the Ordinance “concerns” youth access to tobacco, the court found that Plaintiffs met their burden of demonstrating a likelihood of success on the merits of § 301.

This case will likely be appealed, but it shows the vulnerability of local ordinances premised on furthering youth tobacco access restrictions when a state youth access prevention statute contains an express preemption clause.