Federal judge dismisses challenge to San Francisco tobacco ordinance
Court accepts agrees with arguments by Herrera, CMA that City's ban on tobacco sales by stores with pharmacies promotes public health
SAN FRANCISCO (July 15, 2011) -- A federal judge late this afternoon granted City Attorney Dennis Herrera's motion to dismiss a lawsuit challenging a San Francisco ordinance banning tobacco sales in stores that include pharmacies. The lawsuit, filed by Safeway, Inc., had argued that grocery stores have a constitutional right to sell cigarettes. U.S. District Judge Claudia Wilken, after a hearing in which the opposing sides presented their arguments, rejected Safeway's novel legal theory, and sided with the City's argument that the ordinance is a legitimate effort to promote public health.
Herrera's motion to dismiss the lawsuit was joined by a brief from the California Medical Association, the professional organization representing some 35,000 physicians statewide, which offered its own forceful testimony for the sound policy basis of San Francisco's law.
"Those who operate pharmacies have chosen to participate in our healthcare delivery system, and that should not include the delivery of cigarettes," said Herrera. "I am grateful that Judge Wilken rejected the argument that Safeway -- whose slogan is 'Ingredients for Life' -- has a constitutional right to sell addictive tobacco products. I am also thankful for the strong support of the California Medical Association for San Francisco's groundbreaking law. The CMA's brief made clear that doctors don't want to send their patients to get prescriptions at places that have cigarettes. Physicians and the public health community have made great progress in changing social norms about smoking, and their brief helped us protect the progress we've made to fight tobacco use here in San Francisco."
San Francisco's first-of-its-kind ordinance, which has served as a model for similar laws in a number of cities including Boston and Richmond, Calif., originally contained an exemption for grocery stores and big box stores that contain pharmacies. Last year, a California appellate court held that while it found no constitutional problem with the City's general decision to ban tobacco sales in stores with pharmacies, the exemption for grocery and big box stores violated constitutional equal protection guarantees. Soon after, the Board of Supervisors enacted an amendment, sponsored by Supervisor Eric Mar, removing the exemption, thereby applying the tobacco sales ban to all stores with pharmacies. That ruling in the California Court of Appeal came in a lawsuit by the Walgreens drugstore chain. Another lawsuit to invalidate the tobacco sales ban was filed by Philip Morris, which claimed in federal court that the City's ordinance violated the tobacco giant's right to free speech. That suit was dismissed by Judge Wilken in October 2009.
The lawsuit is: Safeway Inc. v. City and County of San Francisco, et al., United States District Court for the Northern District of California Case No. CV 11-0761 CW. Judge Wilken announced her ruling from the bench on the City & County of San Francisco's motion to dismiss the case, and informed the parties that a written ruling would be forthcoming.
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