SAN FRANCISCO -- Philip Morris USA filed suit Wednesday in federal court to overturn a San Francisco ordinance that would ban the sale of tobacco products in drug stores. The lawsuit asks the court in the Northern District of California to delay enforcement of the ordinance and ultimately declare it unconstitutional. The ban, passed by a divided Board of Supervisors, already is the subject of a separate lawsuit pending in state court challenging its propriety.
"Although called a ban on sales, the purpose and effect of the ordinance is to suppress communications directed to adult smokers, [image-nocss] in violation of our constitutional rights," said Joe Murillo, Altria Client Services vice president and associate general counsel, speaking on behalf of Philip Morris USA. "Likewise, the ban unfairly deprives adult consumers of the opportunity to buy tobacco products from legitimate licensed retail businesses."
The U.S. Supreme Court has established that tobacco manufacturers have a protected First Amendment right to communicate to adult consumers about their lawful products and that adult consumers have an interest in receiving that information.
Richmond, Va.-based Philip Morris USA supports reasonable legislation to ensure that tobacco products are sold responsibly to adult consumers in face-to-face transactions with retail clerks. It supports strict licensing laws for tobacco sales and strict enforcement of such laws, and it enforces its own policies on responsible merchandising of the tobacco category; however, the San Francisco ban is unjust to manufacturers, retailers and adult consumers because it bars—without legitimate reason—certain retailers from offering legal tobacco products to adult consumers who wish to buy them, the company said.
"We are asking for an expedited review of our complaint and look forward to presenting our arguments on this issue," said Murillo. Altria Group Inc. is headquartered in New York City.
Earlier this month, Deerfield, Ill.-based Walgreen Co. filed suit against the city of San Francisco over legislation that would ban the sale of tobacco products in pharmacies. City officials at that time said the drugstore chain faces an uphill battle in striking down the new law. The suit, filed in state court in San Francisco on September 8, argues that the ordinance is illegal because it targets drug stores while ignoring other retailers that have pharmacies and sell tobacco products, including some grocery stores.The suit also seeks to have the ordinance declared unconstitutional and adopted improperly under city law and seeks to prevent the city from enforcing the ordinance.(Click here for previous CSP Daily News coverage.)
In late July, the San Francisco Board of Supervisors voted 8 to 3 in favor of the tobacco sales ban. The measure amends San Francisco's health code to prohibit tobacco sales in any pharmacy, whether a small mom-and-pop store or a large retailer like Walgreens. Drug stores caught selling tobacco products in the city will be fined up to $1,000.
"A pharmacy should be a place you go to get better, not a place you go to get cancer," said Nathan Ballard, a spokesperson for the mayor's office.
The citywide ban was modeled on rules enacted in eight Canadian provinces. Similar proposals have failed this year in Rhode Island, New Hampshire, Tennessee, Illinois and New York. San Francisco is the first city in the country to ban the sale of tobacco products in pharmacies, Ballard said.
Opponents of the ban say it puts pharmacies at a competitive disadvantage against other retailers and will do little to curb the smoking habits of San Franciscans.
The California Distributors Association and the National Association of Chain Drug Stores oppose the ban.
The issue is a particularly touchy one for Wal-Mart, which is trying to expand business by positioning itself as a champion of affordable health care, attracting more customers to its pharmacies with cheap prices on generic drugs and opening health clinics in many of its stores, all of which sell tobacco products. Wal-Mart, however, doesn't have stores that would be affected by San Francisco's ban as proposed.
The San Francisco vote is being closely watched. The city "was the first to ban smoking in workplaces and other public places, and has been a catalyst for other jurisdictions," Matt Myers, president of the national Campaign for Tobacco-Free Kids told The Wall Street Journal when the ban was announced. "If San Francisco prohibits the sale of tobacco in pharmacies, we could well see this prohibition spread across major areas of the nation."
Opponents of the tobacco bans believe stores will get out of the clinic business if they are forced to choose between providing health care and selling cigarettes.
It is a tough call for retailers, which would be forced to give up a big source of revenue and lose a significant customer draw. But a few big retailers already have given up cigarettes. Target Corp. quit the sales habit in 1996 believing that new laws restricting cigarette sales made them too labor-intensive to dispense. The chain said the financial impact was minimal. Wal-Mart stopped selling cigarettes in its Canadian stores in 1994 as the provincial government of Ontario was adopting a law that would bar stores operating pharmacies from selling cigarettes, a ban seven other Canadian provincial governments later approved. (Click here for complete previous coverage.)
East Coast grocery chain Wegmans Food Markets Inc. also stopped selling tobacco early this year. (Click here for coverage.) Another East Coast grocery chain, DeCicco Markets, followed suit shortly thereafter. (Click here for coverage.)
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