Is it legal to ban tobacco sales in pharmacies?

Yes, it is legal to ban tobacco sales in pharmacies. A city or county may enact a law banning the sale of tobacco in stores that contain pharmacies so long as the law does not treat similar stores containing pharmacies differently from one another.

Summary of the litigation

In 2008, San Francisco became the first city in the nation to ban the sale of tobacco products at most pharmacies. The law initially exempted grocery stores and big box stores with pharmacies. The San Francisco law was challenged in three lawsuits. The first two cases were filed in 2009: one in federal court by Phillip Morris, and another in state court by Walgreens. Philip Morris contended that the law violated its freedom of speech by restricting the advertising of tobacco in pharmacies. The lawsuit failed; the court held that there was no First Amendment violation. Walgreens’ lawsuit contended that the exemption for grocery stores and big box stores violated the Equal Protection clause of the fourteenth amendment. The court agreed with Walgreens, holding that the law unfairly favored grocery and big box stores.

In response to the Walgreens case, San Francisco amended its law to remove the exemptions in November 2010, so that it applied to all retailers that contained pharmacies. Subsequently, Safeway filed suit against the city on the grounds that the law unfairly favored stores without pharmacies, which could continue to sell tobacco products. This case was dismissed by the court, which found that the lawsuit did not have merit.

The decisions in these three cases demonstrate that there is no legal barrier to banning the sale of tobacco in pharmacies, so long as the law treats all retailers that contain pharmacies equally. (If you are in a state other than California, please consult your state law to determine if other legal barriers exist.)

Below is a summary containing further information about each of the lawsuits described above. If you have any questions about these rulings or any other questions about tobacco control laws, please contact us.

Philip Morris v. City and County of San Francisco

In this federal lawsuit, Philip Morris argued that the city’s ban infringed on its First Amendment right to free speech because the effect and purpose of the law was to restrict cigarette manufacturers’ advertising in pharmacies. However, in September 2009, the Ninth Circuit Court of Appeals disagreed and upheld the ban, finding no free speech violation. Philip Morris subsequently dropped the lawsuit (Philip Morris, USA v. City and County of San Francisco, 2009 WL 2873765 (Cal.)). You can read a copy of the court’s decision at: www.ca9.uscourts.gov/datastore/memoranda/2009/09/09/08-17649.pdf.

Because a Court of Appeals has now held that a ban on tobacco sales in pharmacies does not violate the freedom of speech, future challenges to similar laws on this basis are unlikely.

Walgreen Co. v. City and County of San Francisco

In this case, filed in state court, Walgreens argued that the San Francisco law violates the Equal Protection clauses in the U.S. and California Constitutions because it exempts grocery and big box stores with pharmacies from the ban on tobacco sales. Walgreens claimed that the exemption harms some stores with pharmacies (i.e., drugstores) while favoring others (i.e, grocery and big box stores).

The lower court dismissed Walgreens’ Equal Protection claim, but the California Court of Appeal found that the law’s distinction between drugstores and other stores containing pharmacies could be unconstitutional. The court reasoned that drugstores were similar to grocery or big box stores because neither type of store sends an implied health-based message to consumers, and the stores sell similar products and have similar customers. The Court of Appeals sent the case back to the lower court for further proceedings (Walgreen Co. v. City and County of San Francisco, 185 Cal. App. 4th (Cal. Ct. App. 2010)). You can download a copy of the court’s decision at: http://caselaw.findlaw.com/summary/opinion/ca-court-of-appeal/2010/06/09/170192.html

The court’s decision does NOT mean that local or state governments can’t prohibit the sale of tobacco in stores with pharmacies. The court held only that laws cannot treat stores that contain pharmacies differently from one another. Any existing law that bans the sale of tobacco in stores with pharmacies but does not exempt certain kinds of stores is unaffected by this ruling.

Safeway v. City and County of San Francisco

In this case, filed February 2011 in federal court, Safeway challenged the city’s newly revised ban on the sale of tobacco in pharmacies, saying that the law unfairly allows other retailers that don’t have pharmacies to sell tobacco while Safeway may not. Safeway argued that this distinction violated the U.S. and California Constitutions’ Equal Protection clause. In July 2011 the court dismissed the lawsuit, ruling that San Francisco’s law is a reasonable and permissible use of its regulatory power. A copy of the court’s decision can be found here: http://www.courthousenews.com/2011/07/19/safeway.pdf

The court’s decision in this case means that local governments in California have the legal authority to ban tobacco sales in pharmacies.