Court Grants Preliminary Injunction Against Philadelphia Flavor Vapor Ban

Judge rules in favor of NATO, co-plaintiffs
Philadelphia courthouse
Photograph: Shutterstock

LAKEVILLE, Minn. — On April 6, the judge presiding over a lawsuit brought by NATO, the Asian American Licensed Beverage Association of Philadelphia and R.J. Reynolds Vapor Co., granted a motion for a preliminary injunction finding that Philadelphia’s ordinance restricting the sale of flavored electronic cigarette and vapor products is pre-empted by Pennsylvania state law. This follows similar rulings in other lawsuits brought against the ordinance.  

The granting of a preliminary injunction means the court has determined that NATO and its fellow plaintiffs are likely to win on the merits of the case and that it would harm the plaintiffs if the ordinance was not enjoined, so this preliminary injunction, while not dispositive, is very good news for the retailers and consumers of Philadelphia.

As passed, the ordinance banned the sale of flavored electronic cigarette/vapor devices except in adult-only establishments, prohibited the sale of electronic cigarette/vapor devices with nicotine salts containing more than 20 milligrams/milliliter of nicotine except at adult-only establishments and allowed only those electronic cigarette/vapor devices approved for sale by the department of public health to be sold. The temporary injunction means that all retailers can continue to sell these products.

NATO files lawsuit

On July 31, NATO, the Asian American Licensed Beverage Association of Philadelphia and R.J. Reynolds Vapor Co. filed a lawsuit in the Philadelphia Court of Common Pleas against the city of Philadelphia seeking declaratory and injunctive relief against the Philadelphia ordinance restricting the sales of flavored vapor products. 

The lawsuit filed against the city has two main claims, with one preemption claim under the Pennsylvania Fiscal Code and a separate preemption claim under the Pennsylvania Local Government Code.

Pennsylvania’s Fiscal Code provides that regulation of cigarette dealers regarding sales of tobacco products, including electronic smoking devices, is vested in the commonwealth, not political subdivisions like the City of Philadelphia, unless and to the extent that the commonwealth specifically grants regulatory authority to the political subdivision. The commonwealth has granted no such authority to the city, and the lawsuit therefore asserts the city has no power or jurisdiction over the sale of tobacco products, including electronic smoking devices.

Pennsylvania’s Local Government Code provides several restrictions to prohibit the sale of tobacco products, including electronic cigarettes, and further provides that state law preempts and supersedes any local ordinance or rule relating to the sale of tobacco. The lawsuit contends that since the subject matter of prohibiting sales of electronic smoking devices is covered under this state law, then the city’s ordinance prohibiting the sale of almost all types of electronic smoking devices except in adult-only establishments is preempted.

Court asked to issue relief

Under the lawsuit, the Court of Common Pleas was asked to issue a ruling that includes the following relief:

1. A declaration that the Philadelphia ordinance is preempted and therefore null and void.

2. An injunction prohibiting the City of Philadelphia from enforcing the ordinance.

The lawsuit further asked for a preliminary injunction, prohibiting the city from enforcing the ordinance while the lawsuit proceeded on these two claims. This is what the court granted on April 6, so the city cannot enforce the ordinance unless the court lifts the injunction, a higher court overrules it, or, at the end of this lawsuit, the court were to reverse itself and decide not to declare the ordinance preempted.

Thomas A. Briant is the executive director of NATO, a tobacco retailing association based in Lakeville, Minn. Reach him at info@natocentral.org.

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