Tobacco

Tobacco

Is there preemption?

Yes, state law preempts municipalities from regulatory actions such as setting minimum age requirements for tobacco purchases, defining tobacco-related criminal offenses and penalties, setting licensing requirements for tobacco retailers, allowing use of tobacco in schools, and banning smoking in most public places.

Certain exceptions that apply only to Philadelphia will be discussed later.

What are the preempting statutes?

Title 53 Chapter 3,^[1] which governs preemption generally, includes a blanket preemption provision that encompasses two other laws, 18 Pa.C.S. § 6305 (the criminal code) and section 206-A of The Fiscal Code. This means that local ordinances cannot legislate on the following topics:

Criminal offenses related to tobacco. This includes setting minimum age requirements on purchases, defining offenses such as selling tobacco to minors, defining penalties for violations, and more.^[2]
Licensing requirements for tobacco retailers^[3]

Instead, municipalities must follow the regulations set by the state. Other statutes specifically contain specific preemption provisions. These include:

Title 18 § 6306.1, which prohibits the use of tobacco products in schools, preempts any municipal or local school board from adopting regulations to the contrary.^[4]
The Clean Indoor Air Act (2008), which prohibits smoking in most public spaces, preempts any political subdivision from adopting or enforcing regulations that conflict with the act.^[5]

Are there exceptions?

The Clean Indoor Air Act states that the preemption provision “shall not apply to a city of the first class. A city of the first class may not change or amend its ordinance to conflict with any provision of this act.”^[6] Because Philadelphia is the only first class city in the state, it is the only municipality to which this exception applies. This exception allows Philadelphia to keep its existing tobacco laws that were in effect prior to the adoption of the Clean Indoor Air Act, even if these laws conflict with the Act. However, Philadelphia cannot affirmatively change these preexisting laws, or introduce any new tobacco laws that would conflict with the Act. Because of this exemption for pre-existing laws, Philadelphia can keep its tobacco ordinance, the Clean Indoor Air Worker Protection Law (passed in 2006),^[7] that would otherwise conflict with the Act because it bans indoor smoking in more places than the state’s Clean Indoor Air Act.

The Clean Indoor Air Act also lists several physical locations where the statute does not apply. These exceptions include private homes and lodging; certain residential facilities; smoke shops; and certain casinos, bars, and nightclubs.^[8] This provision applies across the state.

Recent developments

Due to the preemption statutes, smoking ban ordinances passed by municipalities like Scranton and Allegheny County have been struck down by courts or not enforced.^[9] Allegheny County, however, has passed e-cigarette bans in public spaces where smoking is already prohibited.^[10] This is permissible because e-cigarettes do not fall under the definition of “smoking” in the Clean Indoor Air Act.

Philadelphia has adopted additional legislation on smoking and tobacco,^[11]including a regulation that “limits the number of tobacco permits by planning district and prohibits new tobacco permits within 500 feet (approximately two blocks) of any K–12 school.”^[12]

In April 2025, State Rep. Dan Frankel, D-Allegheny, introduced HB 880, called Protecting Workers from Secondhand Smoke Act,^[13] which would extend indoor smoking bans to cover most bars, clubs, and casinos, and would ban the use of e-cigarettes in indoor spaces. The bill would also remove the tobacco preemption provisions in State law.^[14] State Senator Jay Costa, D-Allegheny, introduced a companion bill, SB 1016, in September 2025.^[15] As of November 2025, the House bill is awaiting consideration by the full chamber and the Senate bill has been referred to the Health and Human Services Committee.^[16]

^[1] https://www.palegis.us/statutes/consolidated/view-statute?txtType=HTM&ttl=53

^[2] https://www.palegis.us/statutes/consolidated/view-statute?txtType=HTM&ttl=18&div=0&chapter=63&section=5&subsctn=0

^[3] https://www.legis.state.pa.us/WU01/LI/LI/US/PDF/1929/0/0176..PDF

^[4] https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/18/18.HTM

^[5] https://www.palegis.us/statutes/unconsolidated/law-information?sessYr=2008&sessInd=0&actNum=0027.

^[6] PA ST 35 P.S. § 637.11

^[7] Clean Indoor Air Worker Protection Law, Phila. Code § 10-602.

^[8] PA ST 35 P.S. § 637.3

^[9] https://archive.triblive.com/news/scranton-a-frontier-in-ban-on-smoking/

^[10] https://www.alleghenycounty.us/files/assets/county/v/1/government/health/documents/environmental-regulations/article-22-e-cigarette_regulations.pdf

^[11] https://www.phila.gov/documents/clean-indoor-air-laws/

^[12] https://www.phila.gov/media/20190906142942/Regulation-relating-to-tobacco-retailing.pdf