The ban on tobacco sales in drugstores will stick, it seems, at least for now.
A lawyer representing Philip Morris argued that the San Francisco law, which took effect last October, forced tobacco companies to withdraw their advertising from drugstores, hindering their constitutional right to communicate with customers.
Daniel Collins, an attorney representing Philip Morris, argued that, “Retailers will not agree to accept (display ads) for products they can’t sell.” Even if certain companies were willing to continue tobacco advertising in their stores, customers would become annoyed in seeing advertisement for products they cannot buy.
Collins also argues that because of this, Philip Morris has to pay more simply to implement its First Amendment right to free speech.
But the Ninth U.S. Circuit Court of Appeals in San Francisco wasn’t buying it and is sticking to its original ban on tobacco sales: Judge Procter Hug refuted Collins’ arguments by stating that it was the company’s own decision to take the advertisements down. Chief Judge Alex Kozinski also argued that, “The problem with your argument is that any time the government bans the sale of anything, it becomes a First Amendment issue,” Kozinski told Collins.
In July of 2008, San Francisco became the first city in the US to ban sales of tobacco products in most of its pharmacies. The ban took effect on October 1, 2008. It was passed in hopes to promote the country as a “smoke free zone.” Larger supermarkets and retail stores such as Costco and Safeway are exempt from this ban.
But those fighting against the ban have argued that pharmacies such as Walgreens and Rite Aid have been singled out. A spokeswoman for Rite Aid, Cheryl Slavinsky argued, “We believe this is about customer choice and the right of customers to find products in our stores.”
Walgreens attempted to seek an emergency injunction on the ban in September of 2008, arguing that they simply wanted the ban to be fair and reach across all retailers.
Mitch Katz, director of San Francisco’s Department of Public Health responded to what he felt was a ridiculous claim: “It’s one thing to say you’re doing it for the convenience of your customers, but to actually sue? To say this is your right to sell the substance associated with the No. 1 cause of preventable death?” Katz said. “It’s unbelievable to me.”
The Court of Appeals seems so agree with Katz; a San Francisco Superior Court Judge denied Walgreens’ demand for an injunction. A state appellate court will prepare to listen to the company’s appeal.