Tobacco company Philip Morris has filed suit to challenge, on first amendment grounds, a new San Francisco law banning sales of cigarettes in pharmacies. The San Francisco Chronicle reports on the legal arguments used by the company and the city:
(10-09) 17:58 PDT SAN FRANCISCO — Philip Morris’ argument that San Francisco’s new ban on tobacco sales in drugstores violates freedom of speech was derided Thursday by the city’s lawyers, who said the First Amendment doesn’t guarantee the right to sell cigarettes.
“The ordinance merely regulates conduct – the conduct of selling tobacco,” City Attorney Dennis Herrera’s office said in papers filed with a federal judge. The tobacco company’s claim in a lawsuit that its speech is being stifled “shows no respect for the Constitution, no respect for the power of cities to protect the health of their citizens, and no respect for the court’s time,” the city’s lawyers said.
U.S. District Judge Claudia Wilken of Oakland denied Philip Morris’ request for a restraining order Sept. 26 that would have blocked enforcement of the law before it took effect Oct. 1. She has scheduled a hearing for Oct. 30 to decide whether to issue an injunction that would halt enforcement until the suit went to trial.
The ordinance, the first of its kind in the nation, prohibits sales of tobacco products in San Francisco’s nearly 60 drugstores, while exempting supermarkets and big-box retail stores that also have pharmacies.
Walgreens challenged the ban in a Superior Court suit, arguing that the exemptions amounts to unconstitutional discrimination against drugstores. But a judge denied an injunction Sept. 30, accepting the city’s argument that it is entitled to target “health-promoting businesses” like drugstores. The company plans to appeal.
Philip Morris’ federal court suit said the ordinance interferes with its right to communicate with its customers. Supervisors’ comments before they approved the measure showed they were motivated by hostility to the message in cigarette ads that smoking is acceptable, the company argued.
The main purpose of San Francisco’s law is “to limit and suppress disfavored messages concerning tobacco,” company lawyers said in court papers. They said the ban effectively forces Philip Morris to pull its advertising from stores that account for 20 percent of the company’s sales in the city.
Deputy City Attorney Vince Chhabria retorted Thursday that the ordinance “does not restrict advertising at all” and leaves tobacco companies free to keep their ads in drugstores as long as they remove their products. He also said Philip Morris’ claim of financial harm was greatly exaggerated.
“If timely implementation of the ordinance helps prevent even a few young San Franciscans from becoming addicted to cigarettes and developing cancer, that is well worth any speculative, minimal financial loss that the tobacco industry might incur,” Chhabria said.