Herrera Takes on Walgreens in California Court of Appeal over Tobacco Sales Ban

Groundbreaking law is ‘rationally related to a legitimate governmental purpose’ in discouraging leading cause of preventable death, brief argues

SAN FRANCISCO (June 10, 2009) — City Attorney Dennis Herrera today filed San Francisco’s opening brief in a legal appeal by Walgreens that seeks to invalidate a 2008 city ordinance banning the sale of tobacco products in drugstores. The 39-page appellee’s brief to be filed with the California Court of Appeal this afternoon contends that the action by city policymakers is “rationally related to a legitimate governmental purpose” because the marketing of cigarettes and other deadly tobacco products by health-promoting businesses sends the wrong message about the dire health consequences of smoking, particularly to young people.

The Deerfield, Ill.-based drugstore chain has argued that the law violates the company’s constitutional equal protection guarantees. Last December, San Francisco Superior Court Judge Peter J. Busch dismissed Walgreens’ suit without leave to amend, rendering moot procedural efforts by the company to enjoin the City from enforcing the ordinance. Walgreens appealed the ruling to the state appellate court on Dec. 23, 2008.

“Consumers reasonably expect drugstores to serve their health needs, not to enable their deadliest habits,” said Herrera. “San Francisco’s local officials have a right and responsibility to protect public health, and a compelling rationale to prohibit drug stores from selling cigarettes, which are far and away our leading cause of preventable death.”

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 — articulated in detail in public hearings by San Francisco Public Health Director Mitch Katz, MD — 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, 2008, 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 last December, the Superior 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 trial court, because invalidation of an ordinance would be an impermissible remedy, even if a Prop I violation were found to have occurred. (In denying Walgreens’ earlier motion for a preliminary injunction on Sept. 30, Judge Busch found that there no violation of Proposition I had occurred.)

In a separate challenge to the ordinance by Philip Morris USA, U.S. District Judge Claudia Wilken issued an order last December denying the tobacco giant’s motion to halt enforcement of the law on the legal theory that it violated the company’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. A hearing has been set for Aug. 12, 2009 in that case.

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. New York State Assemblyman Sam Hoyt, a Buffalo Democrat, is co-sponsoring state legislation there (loosely modeled on the San Francisco law) that would ban cigarettes in drugstores as well as in supermarkets and big-box stores that have pharmacies.

The case 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.