NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 20-3519

_______________

CIGAR ASSOCIATION OF AMERICA, INC.; ITG CIGARS, INC.; 

SWEDISH MATCH NORTH AMERICA, LLC; 

SWISHER INTERNATIONAL, INC.

v.

CITY OF PHILADELPHIA; COMMISSIONER PHILADELPHIA 

DEPARTMENT OF PUBLIC HEALTH,

Appellants

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-20-cv-03220)

District Judge: Honorable Gene E.K. Pratter

_______________

Argued: June 23, 2021

Before: CHAGARES, PORTER, and ROTH,

Circuit Judges.

(Filed: November 24, 2021)

_______________

Kelly S. Diffily [ARGUED]

CITY OF PHILADELPHIA LAW DEPARTMENT

1515 Arch Street, 17th Floor

Philadelphia, PA 19102

Counsel for Appellants
2

Mark A. Aronchick

Andrew M. Erdlen

John S. Summers [ARGUED]

HANGLEY ARONCHICK SEGAL PUDLIN & SCHILLER 

One Logan Square

18th & Cherry Streets, 27th Floor

Philadelphia, PA 19103

Counsel for Appellees

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OPINION

______________

PORTER, Circuit Judge.

Faced with a sharp increase in the public’s use of flavored tobacco products, the 

City of Philadelphia enacted Ordinance 180457 in December 2019. The measure bans the 

sale of tobacco products with “characterizing flavors,” defined as any “taste or aroma, 

other than the taste or aroma of tobacco.” Phila., Pa., Code § 9-639 (2021). 

A group of cigar manufacturers, importers, and distributors sued Philadelphia in 

the Philadelphia Court of Common Pleas, seeking declaratory and injunctive relief 

against the Ordinance, as well as money damages. Philadelphia removed the action to 

federal court. The plaintiffs then moved for a preliminary injunction.

The District Court granted the plaintiffs’ motion. See Cigar Ass’n of Am. v. City of 

Philadelphia, 500 F. Supp. 3d 428 (E.D. Pa. 2020). It ruled that the Ordinance was 

preempted by Pennsylvania state law and that the plaintiffs would suffer unrecoverable 

 This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding 

precedent.
3

economic loss unless an injunction issued. From the District Court’s injunction order, 

Philadelphia brings this interlocutory appeal. We will affirm.

I

Pennsylvania law prohibits the sale of tobacco to minors. But Philadelphia 

considers state law to be inadequate to deal with the health consequences of tobacco use

by both minors and adults. According to Philadelphia, most of the youth who have used 

tobacco report starting with a flavored tobacco product. This problem is worse in 

minority and low-income neighborhoods.

To combat this public health threat, Philadelphia passed the law at issue, which 

prohibits the sale of tobacco products with a taste or aroma other than that of tobacco. 

Phila., Pa., Code § 9-639. The Ordinance includes a narrow exception for “Tobacco 

Products Distribution Business[es],” defined as businesses closed to minors that derive 

ninety percent or more of their sales from tobacco products and do not sell food. Id.

As noted, the District Court granted the plaintiffs’ motion for a preliminary 

injunction. Cigar Ass’n of Am., 500 F. Supp. 3d at 438. The court began its analysis with 

a discussion of the two Pennsylvania statutes at issue: 53 Pa. Cons. Stat. § 301 and 18 Pa. 

Cons. Stat. § 6305. Id. at 430. The first statute is the preemption provision. It provides, 

with exceptions not relevant here, that “the provisions of [18 Pa. Cons. Stat. § 6305] 

(relating to sale of tobacco products) shall preempt and supersede any local ordinance or 

rule concerning the subject matter of [section 6305].” 53 Pa. Cons. Stat. § 301(a). The 

second statute, section 6305, contains five prohibitions related to the sale of tobacco, 

three of which expressly mention minors. 18 Pa. Cons. Stat. § 6305. 
4

To resolve the legality of the Ordinance, the court answered two questions. Cigar 

Ass’n of Am., 500 F. Supp. 3d at 430. First, what is section 6305’s subject matter? Id. 

Second, does the Ordinance concern that subject matter? Id. The court concluded that the 

subject matter of section 6305 is “youth access to tobacco,” and that the Philadelphia 

Ordinance does concern that subject matter. Id. at 430–31. Accordingly, the plaintiffs 

demonstrated a likelihood of success on the merits of their preemption claim. Id. at 431–

35. Turning to the issue of irreparable harm, the court concluded, based on a report from

an expert for the plaintiffs, that the plaintiffs would suffer substantial economic harm if 

the Ordinance were to go into effect, and that the harm would be unrecoverable because 

of Philadelphia’s Eleventh Amendment immunity from suit for money damages. Id. at 

436–37. 

The District Court then found that “the balance of the equities and the public 

interest both weigh in favor of an injunction.” Id. at 437. The court declined to “secondguess” the General Assembly’s judgment “that it is in the public interest to preempt 

enactments like the Ordinance at issue in this case.” Id. at 438. Having determined that all 

factors favored a preliminary injunction, the District Court issued one. Id.

This interlocutory appeal followed.

II

This case was removed to the District Court under 28 U.S.C. §§ 1441 and 1446.

We have appellate jurisdiction under 28 U.S.C. § 1292(a)(1). “When reviewing a district 

court’s grant of a preliminary injunction, we review the court’s findings of fact for clear 

error, its conclusions of law de novo, and the ultimate decision granting the preliminary 
5

injunction for an abuse of discretion.” Bimbo Bakeries USA, Inc. v. Botticella, 613 F.3d 

102, 109 (3d Cir. 2010). A district court abuses its discretion when it issues an injunction 

based “‘on an erroneous view of the law or on a clearly erroneous assessment of the 

evidence,’ which includes an improper application of the correct law to the facts.” Hope 

v. Warden York Cnty. Prison, 972 F.3d 310, 320 (3d Cir. 2020) (citation omitted) 

(quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)). A district court’s 

factual finding is clearly erroneous “when although there is evidence to support it, the 

reviewing court on the entire evidence is left with the definite and firm conviction that a 

mistake has been committed.” Id. (internal quotation marks omitted) (quoting United 

States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

III

“Preliminary injunctive relief is ‘an extraordinary remedy’ and ‘should be granted 

only in limited circumstances.’” Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d 

Cir. 2004) (quoting Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 

1421, 1426–27 (3d Cir. 1994)). A party seeking a preliminary injunction “must meet the 

threshold for the first two ‘most critical’ factors: it must demonstrate that it can win on 

the merits (which requires a showing significantly better than negligible but not 

necessarily more likely than not) and that it is more likely than not to suffer irreparable 

harm in the absence of preliminary relief.” Reilly v. City of Harrisburg, 858 F.3d 173, 

179 (3d Cir. 2017) (footnote omitted).1“If these gateway factors are met, a court then 

1 We noted in Reilly that “the availability of money damages for an injury typically will 

preclude a finding of irreparable harm.” Reilly, 858 F.3d at 179 n.4. Philadelphia 
6

considers the remaining two factors”—the balance of the equities and the public 

interest—“and determines in its sound discretion if all four factors, taken together, 

balance in favor of granting the requested preliminary relief.” Id.

Philadelphia argues that the plaintiffs failed to establish either of the first two 

gateway factors, so the entry of a preliminary injunction was an abuse of discretion. We 

disagree.

A

We begin with the merits. “As a city of the first class pursuant to the First Class 

City Home Rule Act, Philadelphia ‘may exercise all powers and authority of local selfgovernment and shall have complete powers of legislation and administration in relation 

to its municipal functions.’” Holt’s Cigar Co. v. City of Phila., 10 A.3d 902, 906 (Pa. 

2011) (footnote omitted) (quoting 53 Pa. Cons. Stat. § 13131). “Under the concept of 

home rule, the ability of a locality to exercise municipal functions is limited only by its 

home rule charter, the Pennsylvania Constitution, and enactments of the General 

Assembly.” Id. The General Assembly is empowered by the Pennsylvania Constitution to 

“deny ‘at any time’ powers that otherwise may have been reserved to a home rule 

municipality.” Mitchell’s Bar & Rest., Inc. v. Allegheny Cnty., 924 A.2d 730, 739 (Pa. 

Commw. Ct. 2007) (quoting Pa. Const. art. IX, § 2). “Under the doctrine of preemption, 

‘[a] municipality may not exercise power or authority in violation of the preemption 

contends that the plaintiffs deceived the District Court by withdrawing certain damages 

claims. But the record suggests that the plaintiffs withdrew those claims because they 

believed those claims were meritless.
7

doctrine, which provides that when the legislature has preempted a field the state has 

retained all regulatory and legislative power for itself and therefore prohibits local 

legislation in that area.’” Id. at 736–37 (alteration in original) (quoting Nutter v. 

Dougherty, 921 A.2d 44, 56 (Pa. Commw. Ct. 2007) (en banc)).

“When examining an express preemption clause,” Pennsylvania courts “focus on 

[its] plain wording . . . , which necessarily contains the best evidence of the legislature’s 

pre-emptive intent.” JoJo Oil Co. v. Dingman Twp. Zoning Hearing Bd., 77 A.3d 679, 

690 (Pa. Commw. Ct. 2013). The express preemption clause at issue provides that “the 

provisions of [18 Pa. Cons. Stat. § 6305] (relating to sale of tobacco products) shall 

preempt and supersede any local ordinance or rule concerning the subject matter of 

[section 6305].” 53 Pa. Cons. Stat. § 301(a). Section 6305, in turn, contains five 

prohibitions: (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. Cons. Stat. § 6305(a). Section 6305 also 

requires that a minor’s parent or guardian be notified in the event of a violation of the 

statute by the minor, provides retailers with an affirmative defense if they take certain 
8

measures aimed at preventing tobacco sales to minors, and authorizes compliance checks. 

Id. § 6305(c)(1), (f), (g).

We must first identify the subject matter of section 6305. The District Court 

looked “to the entirety of § 6305” and concluded that “its subsections work together to 

combat a common subject matter: youth access to tobacco.” Cigar Ass’n of Am., 500 F. 

Supp. 3d at 434. Attacking this conclusion, Philadelphia contends that section 301 only 

“preempts local legislation concerning the narrow areas that Section 6305 explicitly 

regulates.” Appellants’ Br. 26. Because the Ordinance simply “restricts in what stores 

lawful adult purchasers can buy flavored cigars,” it “does not touch on any of the specific 

items identified in Section 6305.” Id. at 27. 

Philadelphia’s view is unpersuasive. The word “subject” signals that we must look 

beyond the specific prohibitions contained in section 6305 to the general “matter of 

concern” of the statute. Subject, Black’s Law Dictionary (11th ed. 2019). The 

Commonwealth Court of Pennsylvania’s decision in Mitchell’s Bar confirms this 

understanding. There, the General Assembly enacted a statute requiring some restaurants 

to create smoking and non-smoking areas. Mitchell’s Bar, 924 A.2d at 733. Allegheny 

County, finding that measure inadequate to deal with the negative health consequences of 

smoking, adopted a measure that completely banned indoor smoking in public places, 

including restaurants. Id. at 734–35. A restaurant sued Allegheny County, arguing that its 

ban was invalid under a state statute preempting “any local ordinance or rule concerning 

the subject matter of” the law requiring the establishment of smoking and non-smoking 

areas in some restaurants. Id. at 737 (internal quotation marks omitted) (quoting 35 Pa. 
9

Cons. Stat. § 1235.1(a)). The Commonwealth Court looked to the text, title, and purpose 

of the state law, and concluded that the law’s subject matter was “indoor smoking in 

restaurants.” Id. The court did not restrict the “subject matter” of the state law to the 

“narrow area[]” explicitly regulated by the statute, as Philadelphia urges us to do in this 

case. Appellants’ Br. 26. Instead, “it defined the subject matter at a high enough level of 

generality to succinctly communicate its essence, but also a low enough level of 

generality to remain tethered to the specific provisions of each subsection.” Cigar Ass’n 

of Am., 500 F. Supp. 3d at 432. We do the same here. Because section 6305’s various 

subsections are plainly aimed at preventing and punishing tobacco use by minors, the 

subject matter of section 6305 is youth access to tobacco.

Two other considerations bolster this conclusion. First, section 301 preempts local 

laws that concern the subject matter of section 6305. But Philadelphia’s position is that 

section 6305 essentially has multiple subject matters, with each prohibition contained in

section 6305(a) being a different one. This renders Philadelphia’s position in tension with 

the text of section 301, which contemplates only one subject matter. Second, section 6305 

appears in Chapter 63 of the Crimes and Offenses title of the Pennsylvania consolidated 

statutes, which is entitled “Minors.” Its placement there suggests that section 6305 is, in 

fact, about youth access to tobacco.

As a fallback position, Philadelphia contends that even if the subject matter of 

section 6305 is youth access to tobacco, the Ordinance is still valid because it does not 

concern that subject matter. Rather, the “Ordinance restricts where lawful adult 
10

purchasers can get flavored cigars in Philadelphia; it facially does nothing to regulate 

youth access to tobacco.” Appellants’ Br. 30 (emphasis omitted).

That argument is also unpersuasive. The Ordinance itself expresses concern about

youth access to tobacco, including that many “adult smokers started smoking by age 18” 

and that “many young people are able to access tobacco products without directly 

purchasing them.” Phila., Pa., Ordinance 180,457 (Dec. 18, 2019). In fact, Philadelphia 

states expressly that its Ordinance is “complementary” to “efforts to reduce the overall 

availability of flavored tobacco products in Philadelphia,” including their availability to 

minors. Id. Just like Allegheny County in Mitchell’s Bar, Philadelphia found a state 

measure inadequate to deal with a problem and sought to impose its own additional 

requirements. The plain text of the preemption provision forbids it from doing so.

Philadelphia repeatedly insists in its briefing that what matters for preemption 

purposes “is what the Ordinance does, not the goals of the Councilmembers who passed 

it into law.” Appellants’ Br. 31; see Reply Br. 6 (urging this Court to disregard the 

Philadelphia City Council’s hope that the Ordinance would produce “a reduction in youth 

smoking”). But a law’s operative provisions (i.e., the things it actually permits or forbids) 

are typically tied to its purpose. The Ordinance is no exception. By restricting the sales of 

flavored tobacco products to “Tobacco Products Distribution Business[es],” which by 

definition must “prohibit[] minors from entering” their establishments, the Ordinance 

deploys a regulation aimed at stopping youth from accessing tobacco that is not 

sanctioned by state law. Phila., Pa., Code § 9-639. Whereas flavored tobacco products 

would otherwise be available for purchase in stores where minors could lawfully 
11

purchase products like gum, candy, and soda (and could seek illicit access to tobacco), 

the Ordinance ensures that such products will be available only in places where minors 

may not enter. Philadelphia’s acknowledgment in its opening brief “that one purpose of 

the Ordinance was to deter youth smoking,” combined with the fact that what the 

Ordinance actually does is restrict the ability of minors to access tobacco, fatally 

undermines its claim that the Ordinance does not so much as “concern” youth access to 

tobacco. Appellants’ Br. 31 (emphasis omitted).

In sum, the plaintiffs have shown that they are likely to succeed on the merits of 

their claim that the Ordinance is preempted by section 301.

2

B

We turn now to the question of irreparable harm. A plaintiff seeking a preliminary 

injunction bears the burden of showing a likelihood that it will experience harm that 

cannot adequately be compensated after the fact by monetary damages. See Winter v. 

Nat’l Res. Def. Council, Inc., 555 U.S. 7, 22 (2008); Adams v. Freedom Forge Corp., 204 

F.3d 475, 484–85 (3d Cir. 2000). “This is not an easy burden.” Adams, 204 F.3d at 485.

A plaintiff can carry its burden by showing that monetary damages are legally 

unavailable even if success on the merits is ultimately established. See Pennsylvania v. 

President United States, 930 F.3d 543, 574 (3d Cir. 2019), rev’d on other grounds sub 

2 Plaintiffs also argue that the Ordinance is preempted by a state fiscal law, Act 42, Fiscal 

Code, 72 P. S. § 232-A (“Act 42”), which preempts local regulation of licensed tobacco 

dealers. Philadelphia argues that Act 42 violates the Pennsylvania Constitution. As the 

District Court noted, we need not decide the issue of Act 42 preemption because the 

Ordinance is preempted by Section 301. Cigar Ass’n of Am., 500 F. Supp. at 435 n.5.
12

nom. Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 

2367 (2020).

The District Court was underwhelmed by the plaintiffs’ evidence of irreparable 

harm, but concluded that they had “done just enough” to show a likelihood of such harm 

absent injunctive relief. Cigar Ass’n of Am., 500 F. Supp. 3d at 436. The District Court 

noted the plaintiffs’ heavy reliance “on the opinion of Dr. Peter Angelides, who holds a 

Doctorate of Philosophy in Economics from the University of Minnesota.” Id. His report 

sought to “determine how much tax revenue is implicated by the Ordinance at both the 

city and state levels.” Id. The District Court explained his methodology:

Dr. Angelides first analyzed how many “Tobacco Products Distribution 

Businesses” there are at present. The Ordinance exempts these companies 

from the sales ban, and as a result Dr. Angelides assumes that tax revenues 

from these businesses would be unaffected. Second, Dr. Angelides calculated 

the reduction in state and city taxes by estimating the sales value of cigars 

that have not yet been listed by [Philadelphia] as unrestricted, and 

multiplying sales of those cigars by the applicable tax rates. Dr. Angelides 

concludes that the Ordinance will implicate nearly $70 million dollars of 

cigar sales annually, causing [Philadelphia] to lose $5.3 million dollars in tax 

revenues per year, while the state loses $4.2 million.

Id. 

The District Court summed up Dr. Angelides’s report as a “calculation that the 

Ordinance would implicate $70 million dollars of cigar sales annually.” Id. Philadelphia 

made several objections to Dr. Angelides’s report; the District Court deemed these

objections “powerful.” Id. The report assumes the number of exempt businesses will 

remain constant; that many consumers of flavored tobacco will not purchase unflavored 

tobacco as a substitute; that customers will not purchase flavored tobacco outside of 
13

Philadelphia; and that new products could not be developed for sale that would be 

unrestricted. Id. But “while the exact magnitude of damage to [the plaintiffs] may be 

speculative,” the District Court reasoned, “the likelihood of damage is not.” Id. at 437. 

And because of Philadelphia’s “Eleventh Amendment immunity” from suit for money 

damages, the damages that the plaintiffs would suffer “constitute irreparable injury.” Id.

The District Court thus found that the plaintiffs had satisfied the irreparable harm element 

of the preliminary-injunction standard.

Philadelphia concedes that the plaintiffs “would be unable to later obtain damages 

specifically for a violation of Section 301.” Appellants’ Br. 41 (emphasis omitted). 

Philadelphia maintains that the reason for the plaintiffs’ inability to recover damages is 

that the Pennsylvania Tort Claims Act, 42 Pa. Cons. Stat. §§ 8541–64, does not permit a 

damages action, not that Philadelphia has Eleventh Amendment immunity from suit. This 

makes sense because Philadelphia, in this case, is not operating as an arm of the 

Commonwealth and thus lacks Eleventh Amendment immunity. See Carter v. City of 

Philadelphia, 181 F.3d 339, 347–48, 358 (3d Cir. 1999). Regardless, both sides agree that 

Philadelphia is immune from having to pay damages if success is established on this 

claim. But Philadelphia urges us to overturn the District Court’s irreparable-harm finding 

because the threat of damages in the form of lost sales is too speculative to warrant 

preliminary injunctive relief. We disagree.

The District Court’s finding that the plaintiffs would suffer significant, 

unrecoverable monetary loss is not clearly erroneous. See Ferring Pharms., Inc. v. 

Watson Pharms., Inc., 765 F.3d 205, 210 (3d Cir. 2014) (explaining that the weighing of 
14

evidence for purposes of a preliminary-injunction ruling is reviewed for clear error). The 

District Court put little weight on the “ipse dixit” of a vice president of one of the

plaintiffs that the Ordinance would “impair Swisher’s goodwill and relationships with 

distributors and customers.” Cigar Ass’n of Am., 500 F. Supp. 3d at 437 n.7. But it 

determined that Dr. Angelides’s report sufficed to show a high likelihood of significant 

economic loss, even if less than $70 million. Id. at 437. On this record, the District

Court’s analysis does not leave a definite and firm conviction that a mistake has been 

committed. Thus, we uphold its determination that irreparable harm would result absent 

an injunction.

* * *

The District Court did not abuse its discretion in granting a preliminary injunction. 

We will therefore affirm the District Court’s order.