Cigarettes removed from San Francisco pharmacies

Legal News Line Dec. 22, 2008, 10:36am

SAN FRANCISCO (Legal Newsline)-Continuing a stream of legal victories for the city of San Francisco against tobacco makers, Judge Peter Bucsh of San Francisco Superior Court dismissed a legal challenge of the city's ban on selling tobacco products in pharmacies.

Walgreens, a prolific drugstore chain with close to 60 locations in the city, had been forced to remove all tobacco products by the law on Nov. 1, after Bucsh first upheld the tobacco ban passed by the Board of Supervisors in July.

The supervisors contend that drugstores are places where customers go to improve their health, not buy products that damage it, which provides a reasonable basis for the ban.

Walgreens complained that the law's exemption for supermarkets and big-box retail stores provides an unfair advantage over pharmacies. On Friday, Busch tossed the complaint from court.

In a separate legal challenge, a federal judge ruled against Philip Morris' attempt to defeat San Francisco's ban, which the company has appealed.

Lawyers for Philip Morris USA argued that the ban on tobacco sales seeks to limit "communications directed to adult smokers, in violation of our constitutional rights," according to published reports.

San Francisco city officials say they hope the ban - the first of its kind in the country -- will become a model for similar legislation in other localities across the country.

According to published reports, Walgreens attorney Daniel Kolkey said the company will appeal the ruling and remains confident the ordinance will eventually be overturned.

"(The ordinance) simply shifts tobacco sales from Walgreens to its competitors without reducing the sale of cigarettes one iota," Kolkey said. "The so-called purpose for this ordinance is to avoid an implied message that smoking is acceptable, but the Board nowhere explains how this is credible or how it can distinguish the implied message emanating from some businesses with pharmacies versus others."

In November, California Attorney General Jerry Brown ramped up his own attack on cigarette use when he targeted banking institutions that process Internet tobacco sales. Brown reached a settlement with First Regional Bank that effectively blocks illegal tobacco sales to minors, a move he called a "major step to public health."

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