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Equitable attack on San Francisco Tobacco Sales Ban Fails

San Francisco has banned the sale of tobacco products in pharmacies -- at least, in SOME pharmacies (Safeways, for example, which contain pharmacies, may continue to sell tobacco). Though arguably states have the right to ban sales of noxious products, and may delegate this right to a municipality within their borders, they must respect the Constitution's Equal Protection clause when doing so. Since Walgreens cannot recover damages from San Francisco (because of sovereign immunity), it has sought a preliminary injunction against enforcement of the ban, on the grounds that its constitutional challenge is very likely to succeed.

Well, as law.com reports, the injunction was denied. Judge Peter Busch ruled that Walgreens had "some very difficult hurdles to get over" in its petition for injunctive relief, which must be declined so long as the San Francisco ban is "reasonably related to a rational purpose." This purpose, according to the city, is that "health-promoting businesses" must not send an implicit message that smoking is acceptable, which message is sent whenever they sell tobacco products. The city argued that Walgreens earns significantly more of its revenue from prescription drug sales than do big box stores: in 2007 roughly 65 percent of Walgreen's retail sales revenue came from prescription drugs, as opposed to 7.5 percent at Safeway and 1.5 percent at Costco, according to the text of the San Francisco ordinance.To the judge this was a "rational basis" for narrowing the tobacco prohibition to "pure" pharmacies.

If a customer buys cigarettes along with, say, make-up or birth control pills, and can no longer do so in Walgreens, that surely is a reason at the margin to switch to the Safeway pharmacy, right? Other cities are eyeing ordinances similar to San Francisco's, so the appeal of this injunction denial will be an interesting one to watch.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.