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Philadelphia can’t enforce flavored tobacco sales ban, federal court rules

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  • third Circuit says Philadelphia’s curbs preempted by state regulation
  • FDA has proposed banning flavored cigars

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(Reuters) – A federal appeals court on Wednesday barred Philadelphia from imposing a ban on the sale of flavored tobacco merchandise, a measure geared toward cracking down on sales of cigars marketed to style like sweet.

The third U.S. Circuit Court of Appeals sided with the Cigar Association of America and a bunch of cigar producers, importers, and distributors in concluding that the 2019 ordinance was preempted by state regulation.

Sarah Peterson, a spokesperson for Philadelphia Mayor Jim Kenney’s administration, mentioned town was reviewing the choice.

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John Summers, a lawyer for the cigar plaintiffs at Hangley Aronchick Segal Pudlin & Schiller, didn’t reply to a request for remark.

The ordinance was adopted earlier than the U.S. Food and Drug Administration in April proposed a ban on menthol cigarettes and flavored cigars, a long-awaited win for anti-smoking teams that would erase an enormous share of sales for the Big Tobacco.

The Philadelphia ordinance banned sales of tobacco merchandise with a characterizing taste apart from tobacco, together with flavored cigarettes and chewing tobacco.

It included a slender exception for tobacco product distribution companies, outlined as establishments closed to minors that derive most of their sales from tobacco merchandise.

After Cigar Association of America and three corporations sued, a federal decide issued a preliminary injunction barring the measure’s enforcement, prompting town to enchantment.

The metropolis argued that Pennsylvania legal guidelines prohibiting the sales of tobacco merchandise to minors and preempting any conflicting native ordinances didn’t bar it from limiting the locations the place adults might legally purchase flavored cigars.

But U.S. Circuit Judge David Porter, writing for the three-judge panel, famous that the ordinance itself expressed concern about youth entry to tobacco merchandise, and that town had adopted it as a part of an total effort to battle that downside.

“Philadelphia found a state measure inadequate to deal with a problem and sought to impose its own additional requirements,” Porter wrote. “The plain text of the preemption provision forbids it from doing so.”

The case is Cigar Association of America et al v. City of Philadelphia et al, third U.S. Circuit Court of Appeals, No. 20-3519.

For Philadelphia: Kelly Diffily of the Philadelphia Law Department.

For plaintiffs: John Summer of Hangley Aronchick Segal Pudlin & Schiller.

Read extra:

Menthol cigarettes, flavored cigars face ban in United States

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Nate Raymond

Nate Raymond experiences on the federal judiciary and litigation. He might be reached at nate.raymond@thomsonreuters.com.

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