Legal Issue

Whether a city and county ordinance prohibiting the sale of tobacco products in stand-alone pharmacies is valid.

Overview

San Francisco passed an ordinance prohibiting tobacco sales in the city’s nearly 60 drug stores, including large pharmacy chains such as Walgreens and Rite Aid, but not in supermarkets and big-box retailers with pharmacies. Philip Morris argued that the ordinance violated its freedom of speech by limiting its ability to communicate with customers. The city denied that the ordinance limits advertising and countered that it applies only to the sale of a product, which is conduct – not speech. The district court agreed with the city and denied Philip Morris’s request for a preliminary injunction. This case is significant because the lawsuit involved the first U.S. law prohibiting the sale of tobacco products in pharmacies, and a decision favoring San Francisco could make it easier for other cities to pass similar laws prohibiting the sale of tobacco products in pharmacies.

On March 24 2009, the Tobacco Control Legal Consortium filed an amicus brief in support of the City and County of San Francisco, arguing that the consensus of the public health community is that tobacco products should not be sold in pharmacies and that doing so conflicts with pharmacists’ code of ethics. We pointed out that the tobacco control movement has focused on changing social and cultural attitudes toward tobacco, including restricting the availability of tobacco, and that prohibiting pharmacies to sell tobacco is one reasonable step to achieve the ultimate goal of reducing and eliminating tobacco use. We also argued that the ordinance is well within San Francisco’s police power and is not a restriction on freedom of speech.

The brief was written by Linda Lye, Altshuler Berzon LLP in San Francisco and was joined by nineteen parties, including national medical, public health and pharmaceutical organizations, as well as California health organizations, leading groups from Massachusetts concerned about Boston’s new pharmacy ban, and several professors at the University of California at San Francisco, School of Pharmacy.

Outcome

On Sept. 9, 2009, the Ninth U.S. Circuit Court of Appeals ruled unanimously that the city’s ban does not restrict freedom of expression, as Philip Morris argued. In affirming the federal district court’s denial of an injunction against the ordinance, the court wrote “Plaintiff’s advertising speech is protected activity. Selling cigarettes isn’t.” On October 15, 2009, the U.S. District Court for the Northern District of California dismissed the case, at the request of both the tobacco company and the City of San Francisco. The ordinance, which took effect October 1, 2009, was the first of its kind in the nation.