The U.S. Court of Appeals for the Third Circuit will review a preliminary injunction against Philadelphia’s enforcement of an ordinance banning the sale of certain flavored tobacco products.

Will a preliminary injunction against Philadelphia’s flavored tobacco ban stand? The U.S. Court of Appeals for the Third Circuit will have the opportunity to decide in Cigar Association of America, et al. v. City of Philadelphia, et al., No. 20-3519 (3d Cir.), appealed from, No. 2:20-cv-03220 (E.D. Pa. Nov. 13, 2020).

As recently reported on this blog, Judge Gene E.K. Pratter of the U.S. District Court for the Eastern District of Pennsylvania preliminarily enjoined Philadelphia’s enforcement of Ordinance No. 180457. 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. In granting the preliminary injunction, Judge Pratter held that the plaintiffs were likely to succeed on their claim that a Pennsylvania statute, 53 Pa. C.S. § 301, preempts the Ordinance.

Philadelphia filed a notice of appeal on December 11, 2020, and the case is now before the Third Circuit. The appeal remains in its early stages, and we will monitor for further developments.