Cigar Ass'n of Am. v. City of Phila.

500 F.Supp.3d 428

CIGAR ASSOCIATION OF AMERICA et al., Plaintiffs

v.CITY OF PHILADELPHIA et al., Defendants

CIVIL ACTION No. 20-3220

United States District Court, E.D. Pennsylvania.

Filed November 13, 2020

Mark A. Aronchick, John S. Summers, Andrew M. Erdlen, Hangley Aronchick Segal Pudlin & Schiller, Philadelphia, PA, for Plaintiffs.

Diana P. Cortes, Benjamin H. Field, Danielle E. Walsh, Eleanor N. Ewing, City of Philadelphia Law Department, Richard Feder, Richard Feder, J.D., Philadelphia, PA, for Defendants.

MEMORANDUM

Pratter, United States District Judge

Plaintiffs in this case seek a preliminary injunction against the City of Philadelphia, enjoining it from enforcing Ordinance 180457. The Ordinance prohibits all sale of flavored tobacco products, with minor exceptions. Plaintiffs argue that the Ordinance is preempted by Pennsylvania law. The Court agrees. Youth access to tobacco is indeed a matter of grave concern. But the General Assembly already considered this, weighed the options, and chose the course it would chart for the Commonwealth of Pennsylvania. It also chose to preempt municipalities from making a detour. The Court and the City of Philadelphia are therefore bound to stay on the path set by the General Assembly.

Because Plaintiffs have demonstrated a likelihood of success on the merits, would be irreparably harmed absent an injunction, and because the balance of the equities and the public interest weigh in favor of an injunction, the Court grants Plaintiffs’ motion for a preliminary injunction.

I. Background

This case concerns a preliminary injunction against the City of Philadelphia from enforcing Ordinance 180457. One of the Ordinance's stated purposes is to reduce the consumption of tobacco products by minors. Pennsylvania law already prohibits the sale of tobacco to minors. But the City concluded that existing measures were somehow insufficient, citing a variety of statistics. The City observed a sharp increase in the use of flavored tobacco products. According to the City, 81% of youth who have used tobacco report starting with a flavored tobacco product. This problem is even more marked in low-income and minority neighborhoods. 29% of Philadelphians at or below the poverty line smoke, compared to 19% of those living above the poverty line. 23% of African Americans in Philadelphia smoke, compared with 17% of white residents.

The City passed the Ordinance: to combat these threats to the public health. The Ordinance prohibits the sale of tobacco products with "characterizing flavors," which is defined as any "taste or aroma[ ] other than the taste or aroma of tobacco." The Ordinance includes a narrow exception for "Tobacco Products Distribution Businesses," defined as businesses that derive 90% or more of their sales from tobacco products and do not sell food.

Plaintiffs, a group of cigar manufacturers, importers, and distributers, filed a complaint in the Philadelphia Court of Common Pleas seeking declaratory and injunctive relief, as well as money damages. The City chose to remove the complaint to the Eastern District of Pennsylvania. Plaintiffs then moved this Court for a preliminary injunction.

Plaintiffs originally argued that the Ordinance violates Plaintiffs’ right to substantive due process, that the Ordinance was unconstitutionally vague, and that the Ordinance was preempted. Plaintiffs have since dropped their federal constitutional claims for purposes of this preliminary injunction, and rely only on their preemption arguments.

II. Discussion

Preliminary injunctions are an equitable remedy, the granting of which "rests in the sound judicial discretion of the trial court." Calabrese v. Local 69 of United Ass'n of Journeymen & Apprentices of Plumbing & Pipe Fitting Indus. of U.S. & Can. , 312 F.2d 256, 256 (3d Cir. 1963) (quoting Joseph Bancroft & Sons Co. v. Shelley Knitting Mills, Inc. , 268 F.2d 569, 573 (3d Cir. 1959) ). A preliminary injunction is an "extraordinary remedy" that never issues as of right. Kos Pharms., Inc. v. Andrx Corp. , 369 F.3d 700, 708 (3d Cir. 2004). Rather, the party seeking the injunction must demonstrate that they meet the familiar four-factor test: "(1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief." Id. The Court considers each of these factors in turn.

A. Likelihood of Success on the Merits

Plaintiffs argue that two Pennsylvania statutes preempt the Ordinance: 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 will first consider § 301 preemption.

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 which all relate to tobacco: (1) "sell[ing] a tobacco product to any minor;" (2) "furnish[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.

To determine whether § 301 preempts the Ordinance, the Court must answer two questions. First, what is the "subject matter" of § 6305 ? Second, does the Ordinance "concern [this] subject matter"? Because § 6305 ’s subject matter is "youth access to tobacco," and the Ordinance concerns youth access to tobacco, Plaintiffs have demonstrated a likelihood of success on the merits of § 301.

i. Section 6305 ’s Subject Matter

The parties disagree about what § 6305 ’s subject matter is. Pointing to § 6305 ’s repeated reference to minors, Plaintiffs argue that its subject is "youth access to tobacco." The City responds that its subject matter is just the five narrow areas it expressly regulates, namely, selling tobacco to a minor, giving tobacco to a minor, selling tobacco in vending machines accessible to minors, selling loose cigarettes, and allowing customers to handle tobacco before purchase.

But this substantive discussion is preceded by a disagreement regarding the appropriate amount of deference owed to the City. The City argues that "caselaw demands that the Court construe any ambiguities in favor of municipal power and against preemption, thus calling for the narrowest reading of preemption that the statutory language allows." (Doc. No. 9 at 43.) This is incorrect. The City confuses the standards for implied preemption and express preemption.

In implied preemption cases, courts resolve all "ambiguities regarding [local] authority [ ] in favor of the municipality." Nutter v. Dougherty , 595 Pa. 340, 938 A.2d 401, 414 (2007). For a court to find implied preemption, "the General Assembly must clearly evidence its intent to preempt." Hoffman Min. Co., Inc. v. Zoning Hearing Bd. of Adams Twp., Cambria Cty. , 612 Pa. 598, 32 A.3d 587, 593 (2011).

But this is an express preemption case, because the General Assembly has "clearly evidence[d] its intent to preempt." Hoffman , 32 A.3d at 593. The only question here is the scope of preemption. See JoJo Oil Co. v. Dingman Twp. Zoning Hearing Bd. , 77 A.3d 679, 690 (Pa. Commw. Ct. 2013) ("When examining an express preemption clause, the task of statutory construction must in the first instance focus on the plain wording of the express preemption clause, which necessarily contains the best evidence of the legislature's preemptive intent."). In determining the scope of preemption, the Court must examine the range of plausible interpretations and choose the one that is most probable, not the reading most favorable to the municipality that just crosses the threshold of plausibility.¹

The best reading of the statute is the one urged by the Plaintiffs. The Court cannot credit the City's argument that the "subject matter" of § 6305 is only the five narrow areas directly regulated by the statute. The word "subject" signals a higher level of abstraction than the thing it is a subject of. For example, addition and subtraction would be said to fall under the general subject of "mathematics." "The Old Man and the Sea" by Ernest Hemmingway and "The Martian" by Andy Weir take place on different planets, but both could be said to share a subject: Humanity vs. Nature. Dictionary definitions confirm the view that the word "subject" has a connotation closer to "theme" than "content." See Subject, Shorter Oxford English Dictionary (6th ed. 2007) ("The matter or theme dealt with by an art or science; ... The theme of a literary composition."); Subject, Black's Law Dictionary (11th ed. 2019) ("The matter of concern over which something is created ... Also termed ... subject matter. " (emphasis in original)).

But these definitions give, at best, vague guidance for how to sift the various subsections of a statute to discern its subject. The Court is guided by the venerated canon that "similar statutes are to be construed similarly (also known by its Latin label of in pari materia )." Lafferty v. St. Riel , 495 F.3d 72, 82 (3d Cir. 2007).

A similar Pennsylvania statute including the phrase "concerning the subject matter of" was interpreted in the case of Mitchell's Bar , and its analysis is instructive. See Mitchell's Bar & Rest., Inc. v. Allegheny Cty. , 924 A.2d 730, 737 (Pa. Commw. Ct. 2007). In that case, the General Assembly had considered how to address the dangers of indoor smoking, and chose to address it...