cigarettes.jpgThe city of San Francisco’s pioneering ban on tobacco sales by pharmacies has survived its latest challenge, a constitutional lawsuit by the Safeway grocery store chain.

U.S. District Judge Claudia Wilken of Oakland today dismissed a lawsuit in which Pleasanton-based Safeway Inc. claimed the measure was an unconstitutional restriction on its right to conduct a lawful business.

Wilken wrote that the current version of the law is “a reasonable and permissible use” of the city’s power to pass laws to protect the public.

“The protection of a vested property right in a business permit generally must yield to the state’s concern for the public health and safety and its authority to legislate for the protection of the public,” Wilken wrote.

The law banning the sales of cigarettes and other tobacco products by pharmacies was originally enacted by the Board of Supervisors in 2008 and was the first of its kind in the nation.

The board’s rationale was that because pharmacies provide health-related services, they should not be allowed to give consumers “tacit approval” for disease-causing cigarettes by selling the products.

In its initial form, the ordinance exempted from the ban so-called “big box stores” that contain pharmacies, such as Safeway grocery stores and large discount retailers.

But the Board of Supervisors amended the law to eliminate that exemption last year after Walgreen Co. won a state court lawsuit that claimed the law discriminated against stores that operate primarily as pharmacies.

Safeway, which has 10 grocery stores containing pharmacies in San Francisco, then filed its federal lawsuit in February.

Safeway spokeswoman Susan Houghton said company officials had not yet seen the ruling and would not be able to comment until next week on whether they plan to appeal.

“We’re certainly disappointed,” Houghton said. “We will have to read the ruling and evaluate our next steps.”

San Francisco City Attorney Dennis Herrera, whose office defended the law, said, “Those who operate pharmacies have chosen to participate in our health care delivery system, and that should not include the delivery of cigarettes.

“I am grateful that Judge Wilken rejected the argument that Safeway … has a constitutional right to sell addictive tobacco products,” Herrera said.

In addition to the lawsuits by Safeway and Walgreen, a third challenge was filed in 2008 by Philip Morris USA Inc., the nation’s largest tobacco company.

That lawsuit, filed in federal court and assigned to Wilken, claimed the ban violated Philip Morris’s right of free speech by curtailing the company’s advertising and displays in drugstores.

But Wilken and a federal appeals court both rejected that claim, saying that the ban regulates only conduct–the sale of cigarettes–and not speech about cigarettes.

Julia Cheever, Bay City News

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