A California state appeals court has overturned a trial court's ruling against Walgreens in its challenge of the constitutionality of a San Francisco city ordinance that bans the sale of tobacco products in pharmacies, but exempts grocery and "big box" stores that contain pharmacies. The trial court found no valid legal basis for the lawsuit, but the appellate court ruled that the ordinance violates the equal protection clauses of the state and federal constitutions. He therefore reinstated the lawsuit.
The court ruled that there is no rational basis for prohibiting tobacco sales at pharmacies like Walgreens and CVS that contain pharmacies, but not at grocery stores or box stores that also contain a pharmacy. In order to be consistent with the equal protection clause of the Constitution, there must be a rational basis for the unequal legislative treatment of retail outlets that are similarly situated with respect to the law in question.
The court ruled that: "There is no rational basis to believe the supposed implied message conveyed by selling tobacco products at a Walgreens that has a licensed pharmacy in the back of the store is different in any meaningful way from the implied message conveyed by selling such products at a supermarket or big box store that contains a licensed pharmacy. Accordingly, we reverse in part the judgment of the trial court sustaining the City's demurrer without leave to amend."
The case now returns to the trial court, having been reinstated on the grounds that Walgreens has a valid legal premise to challenge the ordinance's constitutionality.
The Rest of the Story
On March 15, in a post entitled "San Francisco Tobacco Sales Law Shows Irrationality of Modern Tobacco Control Movement's Approach," I wrote:
"Is there a rational basis for letting Safeway sell cigarettes but telling Walgreens that it can't?"
"That's the question that a California appellate court is trying to answer in considering the appeal of a lawsuit challenging the constitutionality of a San Francisco law that bans the sale of tobacco products in pharmacies. The law only bans the sale of tobacco in some pharmacies. Those that are part of "box stores" are not included. Thus, although many Safeway supermarkets contain pharmacies, the pharmacies within those stores are still allowed to sell cigarettes. However, a large Walgreens store which may sell may products in addition to pharmaceuticals may not sell tobacco products, even though it offers for sale many food and household items."
"To make matters worse (and seemingly, more arbitrary), it is not the case that tobacco products cannot be sold at all Walgreens stores. If a Walgreens contains a pharmacy, then it can sell tobacco products. But if a Walgreens is otherwise exactly the same but does not contain a pharmacy, it cannot sell tobacco products." ...
"If the sale of cigarettes sends a bad message, then why should one Walgreens be allowed to sell cigarettes but not another Walgreens which may be located right down the street? It is very unlikely that the consumer views one Walgreens as having a different mission from another Walgreens, so on what basis is it going to protect the consumer from getting a mixed message by outlawing the sale of cigarettes at one Walgreens but not the other?"
"Similarly, there is absolutely no public health rationale for banning the sale of cigarettes in a Walgreens that has a very small pharmacy, but not in a Safeway that may have an extremely large pharmacy. If it sends a mixed message for the Walgreens pharmacy to sell cigarettes at a location where drugs are also being sold, then why does it not also send a mixed message for the Safeway store to sell cigarettes at the same location of an even larger pharmacy?"
The appeals court has therefore agreed with my argument. It finds no rational basis to prohibit the sale of tobacco at Walgreens but not at Safeway. It rejected the city's justification for the distinction, which the court decided "does not justify treating stores such as Walgreens differently from general grocery stores and big box stores. "
I think there is a larger issue here, beyond merely the legality of the San Francisco ordinance. The larger issue is the hypocrisy and inconsistency in the modern-day tobacco control movement. This irrational law is representative of a larger problem that I have noticed in the tobacco control movement these days: the loss of rationality to its policy positions.
Remember, anti-smoking advocates in San Francisco are also pushing for an ordinance to limit the number of stores that can sell tobacco products in San Francisco to 385. Apparently, if 385 stores sell tobacco products in a city, it is perfectly acceptable, but if 386 stores sell tobacco products, then it is an affront to the public's health.
As another example, the Kansas legislature just declared secondhand smoke to be an extreme danger, so hazardous that it needs to be banned inside any workplace, including bars and restaurants. But the legislature apparently did not find secondhand smoke to be a hazard inside state-owned casinos, which it exempted from the law. Apparently, secondhand smoke has a special property whereby it spontaneously de-toxifies itself when it is present in a state-owned casino.
And perhaps the greatest act of irrationality is the major national anti-smoking groups' support for a ban on electronic cigarettes at the same time as they supported the federal government's explicit approval of the much more toxic analog cigarettes.
The question that arises is this: why is it that the public's health no longer seems to be the driving force behind the tobacco control movement? The movement is no longer standing up for any principle of public health protection. Instead, it is standing up merely for an ideology by which certain actions are allowable and certain actions are not, but the distinction between the two is completely arbitrary.
When tobacco companies tell the public that lower yield cigarettes may be safer, they are guilty of fraud. When the anti-smoking groups tell the public the exact same thing, they are "defeating the tobacco companies" and "saving countless lives."
When tobacco companies or paid consultants draw conclusions based on studies without a control group, they are undertaking "junk science." When anti-tobacco researchers do the same thing, they are contributing breakthrough findings that must immediately be disseminated through the media.
When a university takes money from the tobacco industry, it is to be scorned and not worthy of receiving funding from the American Legacy Foundation. But when Legacy wants to pursue tobacco industry funding to sustain its media campaign, the money suddenly becomes clean.
And of course, most recently, when tobacco industry consultants have a conflict of interest, they are to removed from an FDA scientific panel. But when pharmaceutical consultants also have a conflict of interest, they are fine. Apparently, conflicts of interest are defined not by whether there is a conflict, but by whether the cause is a good one or not.
If this story teaches us anything, the court's ruling should caution tobacco control advocates that they can no longer go along with this disregard for rationality in policy making. It is time for a return to the basic principles of public health protection. It is time to require of ourselves that we formulate rational, consistent, science- and evidence-based policies that adhere to principle, and not merely to ideology.