Consumers ‘rely on stores like Walgreens to serve our health needs, not to enable our deadliest habits,’ City Attorney says
SAN FRANCISCO (Dec. 19, 2008) — At a hearing in San Francisco Superior Court this morning, Judge Peter J. Busch dismissed without leave to amend a lawsuit by Walgreens Company challenging the validity of a San Francisco ordinance that bans the sale of tobacco products in drug stores. The ruling issued from the bench renders moot an appeal by the Deerfield, Ill.-based drugstore chain currently before the California Court of Appeal that sought to overturn Judge Busch’s Sept. 30 decision denying the company’s motion for a preliminary injunction. In order to continue its thus far fruitless legal battle, Walgreens would be required to file a new appeal of today’s ruling on the merits.
“As consumers, we rely on stores like Walgreens to serve our health needs, not to enable our deadliest habits,” said City Attorney Dennis Herrera, who is defending the City ordinance. “Cigarettes are far and away our leading cause of preventable death, and San Francisco policymakers have a powerful rationale for keeping them out of drug stores. I applaud Judge Busch for his thorough understanding of the legal issues at stake in this case, and for showing proper deference to our local government’s right and responsibility to protect public health.”
The ordinance Herrera is defending prohibits San Francisco’s nearly 60 drugstores from selling cigarettes and other tobacco products. Supermarkets and big-box retail stores with pharmacies were exempted from the ban based on a policy rationale — endorsed by such groups as the American Pharmacists Association, the California Pharmacists Association, and the California Medical Association — that tobacco sales by businesses otherwise dedicated to promoting health implicitly endorse the acceptability of smoking.
Walgreens sued to strike down the City ordinance on Sept. 8, alleging that it violated its right to equal protection under the state and federal constitutions, and charging that the measure was void for failing to comply with Proposition I, a city measure requiring “economic impact reports” in certain circumstances. In dismissing Walgreens’ lawsuit today, the Court held that the Board of Supervisors was within its rights to enact an ordinance rationally related to a legitimate governmental purpose: prohibiting the sale of deadly products by businesses widely thought to benefit health and wellness. The company’s Prop I claim failed, according to the court, because invalidation of an ordinance would be an impermissible remedy, even if a Prop I violation were found to have occurred. (In denying the preliminary injunction motion on September 30th, Judge Busch held that, in any event, there was no violation of Prop I.)
Earlier this month, U.S. District Judge Claudia Wilken issued an order in another legal challenge to the San Francisco ordinance, denying Philip Morris USA’s motion to halt enforcement of the law on the legal theory that it violated the tobacco giant’s first amendment right to free speech. The Oakland-based federal judge noted that the ordinance “prohibits conduct, tobacco sales, not speech about tobacco.” Philip Morris has appealed that ruling to the Ninth Circuit Court of Appeals. No hearing has been set for the Philip Morris appeal.
San Francisco’s ordinance, which took effect on Oct. 1, is the first of its kind in the nation. Earlier this month, the Boston Public Health Commission unanimously approved a similar measure there, which is scheduled to go into effect 60 days following the commission’s approval.
The case is Walgreen Co. v. City and County of San Francisco et al., San Francisco Superior Court No. 479-553. The unrelated federal case involving the same ordinance is Philip Morris USA Inc. v. City and County of San Francisco et al., United States District Court for the Northern District of California, Oakland Division, Case No. C08-4482 CW.