The U.S. District Court for the Eastern District of Pennsylvania entered a permanent injunction against Philadelphia’s enforcement of an ordinance banning the sale of certain flavored tobacco products, after the U.S. Court of Appeals for the Third Circuit upheld a preliminary injunction against the same.
Litigation over a local flavor ban came to a close on March 8, 2022, with Judge Gene E.K. Pratter of the U.S. District Court for the Eastern District of Pennsylvania entering a permanent injunction:
- prohibiting the City of Philadelphia from enforcing City Ordinance No. 180457 (the “Ordinance”); and
- requiring the City to void and withdraw any and all regulations regarding the Ordinance.
The case is Cigar Association of America, et al. v. City of Philadelphia, et al., No. 2:20-cv-03220 (E.D. Pa.).
The Ordinance purported to make it unlawful to sell flavored cigars or flavored roll-your-own tobacco in Philadelphia but provided a narrow exception for certain businesses that derive at least ninety percent of their gross annual sales revenue from tobacco products and accessories and do not sell food or beverages.
As previously reported on this blog, on November 13, 2020, Judge Pratter preliminarily enjoined Philadelphia’s enforcement of the Ordinance, finding (among other things) that the plaintiffs were likely to succeed on their claim that a Pennsylvania statute, 53 Pa. C.S. § 301, preempts the Ordinance. Philadelphia appealed to the Third Circuit, which affirmed Judge Pratter’s preliminary injunction on November 24, 2021.
The case then went back to Judge Pratter. On February 28, 2022, the parties requested that she enter a permanent injunction consistent with a joint stipulation of settlement agreement and release that they filed on the same date. The parties agreed that the Ordinance “is preempted by the current version of 53 Pa. C.S. §301.” Judge Pratter ordered the permanent injunction on March 8, 2022.
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This case is significant in that two federal courts preliminarily held (and Philadelphia ultimately agreed) that the plaintiffs were likely to succeed on their claim that state law limited the City’s authority to enforce its flavor ban. So far, federal-law challenges to local flavor bans have been less successful. And while federal courts do not ordinarily enjoin states’ or localities’ violations of state law, it was appropriate for them to do so here as Philadelphia removed the case to federal court after the plaintiffs filed it in state court. The permanent injunction appears to be significant not only for plaintiffs but also for other businesses coming within the scope of the Ordinance. The permanent injunction prohibits the City’s enforcement of the Ordinance “against Plaintiffs and all other persons and entities.”