Dismissal concludes tobacco giant’s federal challenge, but litigation by Walgreens remains underway in California Court of Appeal
SAN FRANCISCO (Oct. 15, 2009) — City Attorney Dennis Herrera today announced that Philip Morris USA has dismissed its legal challenge to a San Francisco law banning the sale of tobacco products in drugstores. The Richmond, Va.-based tobacco giant, which is the nation’s number one cigarette manufacturer, originally filed its lawsuit in U.S. District Court in Oakland on Sept. 24, 2008, arguing that the 2008 city ordinance violated the company’s First Amendment right to free speech. Judge Claudia Wilken denied the company’s request for a preliminary injunction in December, noting that the ordinance “prohibits conduct, tobacco sales, not speech about tobacco.” That decision was affirmed by the Ninth Circuit Court of Appeals last month.
“San Francisco’s local officials have the right and the duty to protect public health, and in this case they have a compelling rationale,” said Herrera. “Consumers — and especially young people — should reasonably expect pharmacies to serve their health needs, not to enable our leading cause of preventable death.”
The ordinance being defended by Herrera’s office prohibits San Francisco’s nearly 60 drugstores from selling cigarettes and other tobacco products. San Francisco’s ordinance, which took effect on Oct. 1, 2008, was the first of its kind in the nation. In February, a similar law in Boston took effect that bans tobacco ban in drug stores and on colleges campuses.
Another lawsuit against the tobacco sales ban by Walgreens remains underway in state courts. The Deerfield, Ill.-based drugstore chain sued on Sept. 8, 2008 to strike down the ordinance, alleging that it violated the retailer’s 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. That suit was dismissed in San Francisco Superior Court, and is now before the California Court of Appeal.
The federal case is Philip Morris USA Inc. v. City and County of San Francisco et al., U.S. District Court for the Northern District of California, No. C-08-4482-CW. The Walgreens challenge is Walgreen Co. v. City and County of San Francisco et al., Court of Appeal of the State of California, First Appellate District, Division Three, Case No. A123891.