City Can Ban Tobacco Sales: Judge

Even if the pharamacy isn't the main business, city can ban tobacco sales in a business.

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    A federal judge on Friday found that the city of San Francisco has a right to ban tobacco sales in stores with pharmacies even if the pharmacy is not the store’s main business.

    U.S. District Judge Claudia Wilken dismissed a suit filed by grocery chain Safeway Inc. against the city that argued grocery stores had a constitutional right to sell cigarettes. Wilken wrote that the city was acting within its rightful authority.

    “The purpose of the ... ordinance, to promote the public health by preventing people from becoming addicted to tobacco and by helping those already addicted to stop smoking, is legitimate and even compelling,” she wrote.

    The first version of the ordinance, passed in 2008, had contained an exemption for grocery stores and so-called big-box stores with pharmacies under the same roof.

    After a California appellate court determined that the exemption for grocery and big box stores violated constitutional equal protection guarantees, the city’s Board of Supervisors passed an amendment last year removing the exemption.

    That more recent version of the ban led to Safeway’s suit, which Wilken dismissed with prejudice, meaning the company could not file an amended version of its complaint.

    “Those who operate pharmacies have chosen to participate in our health care delivery system, and that should not include the delivery of cigarettes,” said San Francisco City Attorney Dennis Herrera, who sought the dismissal. Safeway officials said they did not yet have a chance to review the ruling. “We are disappointed in the decision,” said Susan Houghton, the company’s director of public and government affairs.