San Francisco Drug Stores to Continue Cigarette Ban
A 9th Circuit Court of Appeals in San Francisco upheld a ruling that disallowed the selling of cigarettes in any pharmacy that existed within the city limits. The 3 judge panel voted unanimously on the provision, stating that it did not ban cigarette advertising, just the sale of the product itself. The current ban, which took effect in Oct 1, 2008, bars cigarette sales in pharmacies like Walgreen’s or Rite-Aid, but not in businesses that have
pharmacies in them, such as a grocery store, Wal-Mart or Costco.
The ordinance, which took effect Oct. 1, 2008, seeks to address concerns that smoking is “legitimized” by allowing cigarette sales in pharmacies. This is counter the goal of health and well being the city argues.
The appeal and ruling followed on the heels of a 2008 lawsuit by Philip Morris USA, who brought litigation against the city of San Fransisco, its board of supervisors and Mayor Gavin Newsom in the U.S. District Court for the Northern District of California. In their suit, the company alleged that the ban violates the First and 14th Amendments. They also pointed out that they have protections under a federal cigarette advertising law. Philip Morris USA further contended that the fact that there is a surgeon generals warning on their product gives buyers a clear indication of potential risks. This means that the state has no need to further this warning by banning the product.
Judges who upheld the ban countered by indicating that the ordinance prohibits the sale of tobacco in that forum, not speech about tobacco. They reasoned that every government regulation suppresses
speech in some manner, but that the prohibition itself does not restrict the promotion of specific ideas.
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