Thе plaintiffs in this case, manufacturers of cigarettes and smokeless tobacco products, 1 mounted a constitutional challenge to the novel ingredient-reporting requirements of Mass. Gen. L. ch. 94, § 307B (Section 307B). The district court granted the plaintiffs’ motion for a preliminary injunction restraining two state officials (collectively, the Commonwealth) from enforcing these requirements. In this venue, the Common *672 wealth invites us to vacate or modify the injunction. We decline the invitation.
I.
Background
A.
The Statute
Regulation is not a stranger to the tobacco industry. The Federal Cigarette Labeling and Advertising Act, 15 U.S.C. § 1335a (1994) (the Labeling Act), mandates that “[e]ach person who manufactures, packages, or imports cigarettes shall annually provide the Secretary [of Health and Human Services] with a list of the ingredients added to tobacco in the manufacture of cigarettes,” but this list need not “identify the company which uses the ingredients or the brand of cigarettes which contain the ingredients,” and those required to furnish lists may designate proxies to do so on their behalf. Cigarette manufacturers typically comply with the Labeling Act’s strictures through an in-ternuncio; they submit information to a law firm which acts as a clearinghouse for the industry. The law firm then furnishes an annual list of all ingredients used by any of the companies to the Secretary. The law firm maintains the secrecy of the ingredients used in a particular brand from both the government and the brand’s competitors. 2 In short, though the Labeling Act obligates the Secretary to report to Congress health risks from tobacco products discerned directly or indirectly through the lists, it assures confidentiality for trade secrets.
Existing state law is not much more intrusive. Apart from Massachusetts, only Minnesota and Texas have required any reporting of tobacco ingredients. The Minnesota statute, Minn.Stat. § 461.17 (Supp.1997), compels tobacco manufacturers to report the use of any of several targeted additives in their products. The Texas law, Tex. Health & Safety Code Ann., §§ 161.251-255 (West Supp.1998), bears certain similarities to Section 307B, but provides protectiоn for information submitted that “would be excepted from public disclosure as a trade secret under state or federal law.” Id. § 161.254(c).
Massachusetts has gone further. When Section 307B was enacted as a means of regulating the tobacco industry, proponents billed it as an innovative regulatory effort which, incidentally, would protect public health. See Press Release Distributed by the Commonwealth upon Signing of Section 307B, August 2, 1996 (quoting then-Govemor William F. Weld’s description of Section 307B as “a common sense, pro-consumer bill that will give people all the information they need to make educated decisions about what they put in their bodies”). The statute significantly expands the reaсh of existing positive law. Its ingredient-reporting provisions are novel both because they demand brand-by-brand reporting of additives and because they permit public disclosure of this ingredient information.
Specifically, Section 307B stipulates that each manufacturer of tobacco products must report annually to the Massachusetts Department of Public Health (DPH) “[t]he identity of any added constituent other than tobacco, water or reconstituted tobacco sheet made wholly from tobacco, to be listed in descending order according to weight, measure, or numerical count” for each brand sold within the state. Any such information that DPH reasonably сoncludes “could reduce risks to public health, shall be public records,” as long as the attorney general advises DPH that such disclosure would not work an unconstitutional taking. 3 The historical archives clearly indicate the legislature’s intent. For instance, in a letter urging colleagues to support the bill that eventually became Sec *673 tion 307B, a proponent explained that brand-specific reporting and disclosure are necessary because “[i]f you smoke Merits you want to know what is in Merits, not what may be in every brand of cigarettes on the market.” Letter from Senator Warren E. Tolman to Colleagues 2 (June 14,1996).
B.
The Marlboro Man’s Secret
Because consumers choose brands based on flavor, taste, and aroma, and tend to remain loyal to those brands, small fortunes are spent creating the flavor formulas for tobacco products. The information needed to copy these formulas is, in turn, worth many millions of dollars. See, e.g., Kurt Ba-denausen, Blind Faith, Financial World, July 8, 1996, at 50-65 (describing Philip Morris’s Marlboro brand as worth over $44,000,000,000 and rating it the most valuable of 364 brand names surveyed). It is no secret that tobacco companies, like other manufacturers of brand name products, employ elaborate procedures to safeguard their ingredient information. For example, suppliers sign confidentiality agreements and furnish their wares in coded packaging, devoid of proprietary nаmes, to keep ingredient information under wraps. Even in house, copies of flavor formulas are retained under lock and key, and ingredient information is made available only on a “need to know” basis.
The tobacco companies claim that the operation of Section 307B threatens to destroy these enormously valuable trade secrets. The industry submits aggregate lists of all ingredients included in tobacco products sold in the United States in compliance with federal law. However, at the current state of technology, these lists cannot feasibly be used to copy a tobacco product’s taste or aroma. Divulging brand-specific lists of ingredients in descending order of volume, as required by Section 307B, is quite a different story; the plaintiffs aver — and the Commonwealth, for purposes of this proceeding, does not contradict — that such lists, when and as disclosed, will allow pirates to “reverse engineer” products possessing flavors and aromas indistinguishable from popular brands, with substantially reduced research and development costs. The threat of this increased ease of entry into, and competition within, the tobacco industry fuels the plaintiffs’ challenge to Section 307B.
c.
Proceedings Below
The cigarette and smokeless tobacco companies brought separate suits attacking Section 307B. Their complaints claimed that the statute was preempted by federal law and that it ran afoul of various constitutional impediments, including the Takings Clause, the Commerce Clause, and the Due Process Clause. The district court consolidated the cases. Early on, it resolved the preemption question in favor of the Commonwealth, and we affirmed that determination.
See Philip Morris, Inc. v. Harshbarger,
The plaintiffs had greater success when they moved for a preliminary injunction to prevent the enforcement of Section 307B’s ingredient-reporting requirements. Finding that the plaintiffs were likely to succeed on the merits of their takings claim and that they faced irreparable harm in the absence of interim relief, the district court restrаined the enforcement of the ingredient-reporting provisions pendente lite. This interlocutory appeal ensued. We have jurisdiction under 28 U.S.C. § 1292(a)(1).
II.
Analysis
A.
The Preliminary Injunction Standard
In considering a request for a preliminary injunction, a trial court must weigh several factors: (1) the likelihood of success on the merits, (2) the potential for irreparable harm to the movant, (3) the balance of the movant’s hardship if relief is denied versus the nonmovant’s hardship if relief is granted, and (4) the effect of the decision on the public interest.
See Ross-Simons of Warwick, Inc. v. Baccarat, Inc.,
We review the trial court’s grant or denial of a рreliminary injunction only for abuse of discretion or mistake of law.
See EEOC v. Astra USA, Inc.,
B.
Takings Analysis: An Overview
The Takings Clause of the Fifth Amendment is incorporated in, and applies to the states by virtue of, the Fourteenth Amendment.
See Chicago, Burlington & Quincy R.R. Co. v. Chicago,
To evaluate the propriety of a preliminary injunction on a regulatory takings claim, an inquiring court must sort through a takings analysis in addition to the multi-factored preliminary injunction determination. This takings analysis should include consideration of “the character of the governmental action, its economic impact, and its interferencе with reasonable, investment-backed expectations.”
PruneYard Shopping Ctr. v. Robins,
In the case at hand, the lower court determined that the plaintiffs enjoyed a likelihood of success on their regulatory takings claim. The Commonwеalth disputes this determination on two main grounds. First, it faults the lower court’s conclusion that the plaintiffs’ reasonable, investment-backed expectations of nondisclosure of ingredient information sufficed to legitimate the finding of a taking. Second, it challenges the court’s characterization of the governmental action, asseverating that the application of Section 307B’s ingredient-reporting provisions to the plaintiffs lacks legal compulsion sufficient to create an actionable taking. After a brief detour, we will consider these contentions sequentially.
Before proceeding to address the Commonwealth’s claims, we think it is useful to clarify what the Commonwealth does not *675 claim in this proceeding. For one thing, it does not now dispute that information provided to DPH under Section 307B will be disclosed to the public. For another thing, it concedes for purposes of these appeals that such information will include valuable trade secrets, susceptible to destruction if exposed. Finally, because the statute was enacted as a regulatory measure, it is perforce grounded in the state’s police power over matters of public health. Although the Commonwealth suggests with scant elaboration that the police power alone offers a sufficient justification for the statute, the parties primarily have briefed and argued the issue of whether the Takings Clause may invalidate the statute. We have therefore focused our likelihood of success analysis on this Takings Clause issue. At this stage of the proceedings, the Commonwealth has not developed any independent “police power” rationale to justify its position and, accordingly, we have before us insufficient “police power” rationale to reach a decision on that issue.
C.
The Plaintiffs’ Expectations
In debating whether the plaintiffs possess the requisite expectations to support a takings claim, both sides embrace the Supreme Court’s decision in
Ruckelshaus v. Monsanto Co.,
Monsanto
involved sequential amendments to the Federal Insecticide, Fungicide, and Rodentieide Act (FIFRA), 7 U.S.C. § 136
et seq.,
the first set of amendments occurring in 1972 and the second set in 1978.
See Monsanto,
In 1970, Congress shifted the responsibility for administering FIFRA from the Department of Agriculture to the Environmental Protection Agency (EPA).
See
Reorganization Plan No. 3 of 1970, 3 C.F.R. 1074 (1966-1970),
reprinted in
5 U.S.C. app. at 1552 (1994). Shortly thereafter, the 1972 amendments metamorphоsed FI-FRA into a comprehensive regulatory scheme for pesticides. This scheme, in effect from 1972 to 1978, required disclosure to the EPA and the public of environmental, health, and safety data — but it provided specific protections for that data so as to avoid the revelation of trade secrets.
See Monsanto,
When Congress amended FIFRA again in 1978, it altered the safeguards against disclosure with respect not only to data thereafter submitted, but also with respect to data that had been supplied during earlier periods.
See id.
at 994-95,
The
Monsanto
plaintiff, a pesticide manufacturer, argued that use or disclosure of the trade secrets that it had submitted to the federal sovereign during any of the three periods would constitute a regulatory taking. The Court decided as a threshold matter that the data constituted “property” under state law and thus enjoyed protection under the Takings Clause.
See id.
at 1003-04,
The Commonwealth uses the statement we have just quoted to support its claim that, after the effective date of Section 307B, divulgement of submitted ingredient lists cannot work a taking because the statute’s enactment vitiates any reasonable investment-backed expectation of nondisclosure on the tobacco companies’ part. We think that it is unfair to read
Monsanto
for this proposition because the part of the Court’s trifurcated holding to which the Commonwealth clings depended on the existence of a voluntary exchange.
See Nollan v. California Coastal Comm’n,
The Commonwealth demurs. The exchange, it says, consists of permitting the tobacco companies to continue doing business in Massachusetts in return for the companies’ compliance with Section 307B. This construct will not wash. A Monsanto-type exchange requires that the government grant a benefit of real value to compensate a property owner for a taking. In constructing this balance, not all benefits bestowed by the sovereign will possess sufficient sub *677 stance to ameliorate the taking — and the state’s self-interested characterization of a right as a benefit cannot change thе underlying calculus. Permitting a company to continue conducting business within a state, while a benefit of sorts, lacks sufficient substance to create a Monsanto-type exchange.
Nollan
illustrates this point. There, a governmental entity required a landowner to dedicate a public easement across his beachfront property in order to obtain a building permit to improve the existing structure.
See id.
at 828,
Applying Nollan’s rationale herе, it is pellucid that the Commonwealth’s unilateral announcement that the privilege of continuing to do business in Massachusetts henceforth will entail the yielding of a tobacco company’s trade secrets cannot, in itself, establish a benefit sufficient to support a voluntary exchange within the Monsanto paradigm. The ability to conduct (and, more especially, to continue to conduct) a lawful business in Massachusetts, though subject to some governmental requirements, simply is not analogous, either in kind or in degree, to the benefit that effected the exchange and extinguished the takings claim in Monsanto. In context, then, the Monsanto Court’s discussion of FIFRA’s post-1978 regime offers the Commonwealth cold comfort.
The Commonwealth finds somewhat sturdier support for its position in the
Monsanto
Court’s resolution of the takings issue for the pre-1972 period. Even though the earliest versions of FIFRA included no conditions explicitly permitting public disclosure of submitted data, and the Trade Secrets Act, 18 U.S.C. § 1905, effectively barred disclosure of trade secrets by government agencies and employees, the Court held that when Monsanto submitted data during the pre-1972 period it “could not have had a ‘reasonable investment-backed expectation’ that EPA would maintain those data in strictest confidence and would use them exclusively for the purpose of considering the Monsanto application in connection with which the dаta were submitted.”
Monsanto,
The analogy between Monsanto’s pre-1972 period and Section 307B cannot be brushed aside lightly. Historically, Massachusetts has granted protection to trade secrets both statutorily,
see
Mass. Gen. Laws, ch. 93 §§ 42, 42A (1997), and under state common law,
see, e.g., Peggy Lawton Kitchens, Inc. v. Hogan,
The
Monsanto
Court’s holding that no uncompensated taking occurred during the pre-1972 and post-1978 periods is neither the be-all nor the end-all of its opinion. The Justices also held that Monsanto had reasonable, investment-backed expectations sufficient to support a regulatory takings claim for data submitted during the intermediate 1972-78 period.
See Monsanto,
Because this matter is before us on appeal from the grant of a preliminary injunction, we need not rule definitively on the point. Likelihood-of-sueeess determinations in such a context require only that courts formulate statements of
probable
outcomes.
See Cohen v. Brown Univ.,
This is especially so because other signposts point in a direction favoring the tobacco companies’ position. Most notably, recent Supreme Court cases share a greater affinity with the
Nollan
Court’s distinction of
Monsanto
— a distinction that did not explicitly differentiate among the case’s three holdings — than with the Commonwealth’s isthmian focus on Monsanto’s treatment of the pre-1972 period.
See, e.g., Dolan v. City of Tigard,
D.
Legal Compulsion
The Commonwealth’s remaining theory posits that Section 307B cannot work a taking as a matter of law bеcause it lacks “legal compulsion” — in other words, the law works no taking because it does not force the tobacco companies to sell their products in Massachusetts (and, thus, they can avoid any need to grapple with it merely by limiting their business activities to more hospitable climes). In pressing this theory, the Commonwealth relies chiefly upon
Hinesburg Sand & Gravel Co. v. Chittenden Solid Waste Dist.,
Hinesburg is small solace to the Commonwealth. The court’s legal reasoning is suspect and, in all events, the case is plainly inapposite. 6 Here, unlike in Hinesburg, a *679 state statute forces a party to make a Hob-son’s choice: either submit ingredient lists containing valuable trade secrets without adequate safeguards or cease doing business in an important market. This is the essence of legal compulsion.
The other authorities cited by the Commonwealth are no more convincing.
See, e.g., Bowles v. Willingham,
The situation created by Section 307B is entirely different. The plaintiffs historically have participated in a lawful, non-price-regulated market, in which state government hitherto has not been directly involved. They now face the potential loss of their valuable trade secrets merely to remain in business in Massachusetts. The Commonwealth cannot by some mysterious alchemy transform this situation into one akin to that which existed in the regulated-market cases. Were the law otherwise, any government entity could avoid the due oрeration of the Takings Clause by the simple expedient of stating its intentions in advance.
The Commonwealth derives its final support for its “legal compulsion” argument from a footnote to the
Monsanto
Court’s discussion of why use and disclosure of data submitted after 1978 would not constitute a taking. In this note, the Justices explained that a pesticide manufacturer could choose to forgo registration in the United States and sell its pesticides solely in foreign markets.
See Monsanto,
This аrgument wrenches footnote 11 loose from its contextual moorings. The Supreme Court appended the footnote to its discussion of the voluntary exchange component of Monsanto’s post-1978 regime. Voluntary exchange is a far cry from the situation at hand, in which the only benefit offered by the government in return for releasing the tobacco companies’ trade secrets is the right to continue doing business in the Commonwealth. As we already have explained, see supra at 677-78, permission to continue operating a lawful business is not the type of government benefit on which a Monsanto-type exchange validly may be predicated.
In sum, the fact that the tobacco companies may cease doing business in Massachusetts if thеy do not wish to submit ingredient information to the DPH is true as far as it goes, but, as a principle of constitutional law, it does not go very far.
E.
The Scope of The Injunction
At a last gasp, the Commonwealth insists that the lower court swept too broadly in fashioning the preliminary injunction and, therefore, abused its discretion. In the Commonwealth’s view, the district court could have met the plaintiffs’ legitimate needs by allowing the ingredient information to be furnished to DPH, as required by Section 307B, *680 and enjoining only public disclosure of the data.
We agree that, in the exercise of the district court’s discretion, a narrower order might have been appropriate. Still, there is a rub: the Commonwealth never tendered this suggestion in the district court. Having-pursued the advantages of an all-or-nothing strаtegy in arguing against the injunction, the Commonwealth may not belatedly obtain the benefits of the more moderate approach that, in the light of its defeat, now looks more attractive.
There is no reason to tarry. As a general rule, a disappointed litigant cannot surface an objection to a preliminary injunction for the first time in an appellate venue.
See United States v. Zenon,
III.
Conclusion
We need go no further. The short of it is that neither the Commonwealth’s “absence of reasonable, investment-backed expectations” argument nor its “legal compulsion” construct satisfies its weighty burden of demonstrating that the district court committed a clear error of law or an abuse of discretion. The Commonwealth’s effort to fault the breadth of the district court’s decree is similarly unavailing. Consequently, we are unable to conclude, at the preliminary injunction stage, that the district court erred iri finding that the plaintiffs had demonstrated a likelihood of success on the merits.
Affirmed. Costs in favor of appellees.
Notes
. The cigarette companies include Philip Morris, Inc., Lorillard Tobacco Co., and R.J. Reynolds Tobacco Co. The smokeless tobacco companies include United States Tobacco Co., Conwood Co., National Tobacco Co., Pinkerton Tobacco Co., and Swisher International, Inc. Another plaintiff, Brown and Williamson Tobacco Corp., manufactures and sells both cigarettes and smokeless tobacco products.
. The Comprehensive Smokeless Tobacco Health and Education Act, 15 U.S.C. § 4403 (1994), constrains smokeless tobacco purveyors to furnish similar composite ingredient information. These companies use a different law firm as a clearinghouse under a similar arrangement.
. Section 307B also requires manufacturers of tobacco products to report the nicotine yield ratings of each of their brands to DPH, subject to possible public disclosure along lines similar to those stipulated for the disclosure of ingredient information. The plaintiffs do not challenge the nicotine-yield portion of the statute in this case and, unless otherwise indicated, our ensuing discussion of Section 307B refers only to its ingredient-reporting provisions.
. The tobacco manufacturers also advance a per se takings argument. That claim presents a difficult question as to the circumstances under which a trade secret may be subject to such a taking. Since our decision comfortably may rest on the regulatory takings theory alone, we do not grapple with this alternative claim.
. Justice O'Connor dissented from this portion of the opinion, arguing that the Trade Secrets Act, along with the pre-1972 agency practice of not disclosing submitted data without the permission of the submitter, together furnished an adequate basis for Monsanto’s reasonable, investment-backed expectation of nondisclosure in respect to data submitted prior to the 1972 amendments.
See Monsanto,
. If correctly decided — a matter on which we do not opine — Hinesburg would be apposite here only if the tobacco companies, after prevailing on a takings theory, subsequently sued the Com *679 monwealth to recover the costs of prosecuting the original action.