A federal appeals court today rejected a challenge by Philip Morris USA Inc. to the city of San Francisco’s ban on tobacco sales in pharmacies.
A three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously turned down the cigarette maker’s claim the law violated its right to free speech by curtailing its advertising.
Chief Judge Alex Kozinski wrote in a brief four-paragraph ruling that the city law only “limits where cigarettes may be sold; it doesn’t prevent plaintiff from advertising.”
Kozinski wrote that while advertising is a form of free speech, “Selling cigarettes isn’t.”
The San Francisco law, the first of its kind in the nation, went into effect last year.
Virginia-based Philip Morris, the nation’s largest tobacco company, argued that while the measure didn’t directly prohibit advertising in pharmacies, it had “the purpose and effect” of doing so.
The appeals court affirmed a decision in which U.S. District Judge Claudia Wilken of Oakland upheld the law last year.
The ruling could be appealed to the U.S. Supreme Court.
Philip Morris spokesman Jack Marshall said this evening, “We’re reviewing our options.”
Marshall said, “While we’re disappointed with today’s ruling, we continue to believe that the purpose and effect of the law is to suppress communications directed to adults in violation of our constitutional rights.”
A separate challenge to the law was filed in the state court system by Walgreen Co., which claims the law is unfair because it applies to pharmacies but not to grocery stores and so-called “big box” stores that contain pharmacies.
Walgreen lost its case before a San Francisco Superior Court judge and is now appealing to a state appeals court.
The rationale for the law, according to Board of Supervisors’ findings incorporated into the ordinance, is that tobacco is dangerous to health and that pharmacies, which most customers visit for health services, give “tacit approval” to tobacco if they sell it.