cigarettes1.jpgA state appeals court today reinstated a lawsuit in which the Walgreens drug store chain claims that a San Francisco city law banning tobacco sales by pharmacies is unconstitutional.

Illinois-based Walgreen Co., the nation’s largest drugstore chain, contends the 2008 law is unfair because it bans tobacco sales by most pharmacies, but makes an exception for supermarkets and so-called “big box” stores such as Costco that contain pharmacies and also sell cigarettes.

The company, which has more than 50 stores in San Francisco, says the different treatment of various kinds of stores violates federal and state constitutional guarantees of equal protection under law.

It challenged the ordinance in San Francisco Superior Court and appealed to the Court of Appeal after Superior Court Judge Peter Busch dismissed the case in December 2008.

A three-judge panel of appeals court in San Francisco agreed with the company’s argument today.

The court wrote that the issue “is a close one,” but said, “The challenged distinction among stores containing licensed pharmacies is not fairly related to the object of the prohibition on sales of tobacco products.”

The law was the first of its kind in the nation when enacted by the city’s Board of Supervisors in 2008.

Its purpose, according to the board, is to avoid giving consumers “tacit approval” of unhealthy tobacco use by allowing pharmacies that are visited for health services to sell cigarettes.

Court of Appeal Justice William McGuiness wrote, “There is no rational basis to believe the supposed implied message conveyed by selling tobacco products at a Walgreens that has a licensed pharmacy in the back of the store is different in any meaningful way from the implied message conveyed by selling such products at a supermarket or big box store that contains a licensed pharmacy.”

The court stopped short of overturning the city law and instead sent the case back to Superior Court for further proceedings so that the city could respond further to the lawsuit.

The panel also noted it was not deciding what the remedy should be if a Superior Court judge finds the law unconstitutional. The appeals court said it would be up to the trial judge to decide on the remedy, which could be either striking down the entire law or removing the exception for supermarkets and big box stores.

A spokesman for Walgreens was not immediately available for comment.

Matt Dorsey, a spokesman for City Attorney Dennis Herrera, said Herrera “will continue to defend efforts by city officials to protect public health.”

Dorsey said, “Consumers should reasonably expect drugstores to serve their health needs, not to enable deadly habits.”

A separate lawsuit challenging the law was filed in federal court by Philip Morris USA Inc., the nation’s largest tobacco company, but Philip Morris dropped the lawsuit after losing in federal trial and appeals courts.

The Philip Morris lawsuit unsuccessfully claimed the law violated its right of free speech.

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