Ban on Tobacco Sales by Pharmacies Dodges Suit

(CN) - The Safeway grocery chain cannot sue San Francisco over a law forbidding stores with pharmacies from selling tobacco, a federal judge ruled.

In 2008, in an effort to discourage tobacco use, the city passed an ordinance prohibiting the sale of tobacco in pharmacies and drug stores. Legislators felt that sales by a pharmacy convey approval of tobacco use, sending a mixed message since pharmacies provide health care services.

A month after the ordinance passed, drugstore chain Walgreens filed suit, calling the regulation arbitrary and capricious because it did not apply to general grocery stores and big-box stores that contain pharmacies but primarily sell other goods.

A state appellate court ruled in favor of Walgreens, finding that the ordinance violated equal protection.

San Francisco responded by extending the ban to grocery and big-box stores, which led to Safeway's federal complaint.

The grocer said it clearly separates the pharmacy from general merchandise using walls, locked doors and a separate counter. It wanted the court to rule that the sale of tobacco products in the general merchandise area is not the equivalent of sale in a pharmacy.

But U.S. District Judge Claudia Wilken declined to intervene in what she considered a state matter, finding no constitutional violations.

"The purpose of the amended 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.

"In sum, although Plaintiff has alleged it has a vested property right in its permits, it cannot overcome the fact that the enactment of the amended ordinance was a reasonable and permissible use of Defendants' police power."

Wilken also rejected Safeway's argument that the ordinance was pre-empted by state laws governing pharmacy licensing.

"The amended ordinance does not regulate the pharmacy profession; it regulates retail stores by prohibiting those stores from selling tobacco if a pharmacy is located within them," she wrote. "This is proper because state law allows local governments to enact ordinances regulating the distribution and sale of tobacco products within their boundaries."

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