Judge to hear Walgreen's tobacco sales ban challenge

A San Francisco Superior Court judge will hold a hearing Sept. 30 on a bid by the Walgreens drugstore chain for a preliminary injunction blocking the city's new ban on tobacco sales by pharmacies.

Superior Court Judge Peter Busch set the date for the hearing during a court session Tuesday with lawyers for the city and Illinois-based Walgreen Co.

The ordinance, the first of its kind in the nation, is due to go into effect on Oct. 1. It was enacted by the Board of Supervisors and signed by Mayor Gavin Newsom last month.

Walgreen Co. claims in a lawsuit filed Monday that the ban is unfair because it applies to pharmacies but not to grocery stores and
so-called “big box” stores that contain pharmacies.

The company says that distinction violates the equal protection guarantees of the federal and California constitutions.

Walgreen Co. attorneys wrote in the lawsuit that the ordinance is “anti-competitive and unconstitutional, only prohibiting tobacco product sales at some pharmacies, but not others, favoring some retail establishments that have pharmacies but not others.”

Matt Dorsey, a spokesman for City Attorney Dennis Herrera, said, “We think the complaint is without merit and we'll be arguing that in greater detail in court.”

The city's written response to the lawsuit is due Sept. 18 and the company will have until Sept. 24 to file a reply.

Walgreens is the largest drugstore chain in the nation, with more than 6,000 stores nationwide, including 54 in San Francisco.

The rationale for the San Francisco law, according to Board of Supervisors' findings incorporated into the ordinance, is that tobacco is the leading cause of preventable death in the United States and pharmacies convey “tacit approval” of tobacco products by selling them.

“This approval sends a mixed message to consumers who generally patronize pharmacies for health care services,” the board said in its findings. 

Walgreens charged in the lawsuit that the theory that consumers receive a message of tacit approval is implausible “given the level of attention anti-smoking efforts have received in the last decade, including extensive anti-smoking public education campaigns.”

The lawsuit claims that if the ban goes into effect, customers will simply buy cigarettes and other tobacco products elsewhere, but may not have access to the smoking cessation products sold at Walgreens stores.  

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