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.
One of the justices on the three-judge panel of the First District Court of Appeal, which is hearing the case, seemed at very least mildly confused during the hearing about the rationale for allowing cigarette sales at Safeway but not at Walgreens. According to an article on Law.com: "In trying to figure out whether there is a rational basis for letting Safeway sell cigarettes but not Walgreens, [Justice] Pollak said, "what we're comparing is very ephemeral."Given "modern marketing," he said, some stores are a cross between a drug store and a grocery store, and there's no clear line: "It's very hard to think of a product I can buy at Walgreens that I can't buy at Safeway and vice versa.""
According to the article, the attorney for Walgreens "urged the court "not to get hung up" on whether Walgreens counts as a grocery store since, he argued, it was clear that San Francisco intended to include the company in its drug store cigarette sales ban no matter what. Throughout the legislative history, it was all about Walgreens," he said. "An ordinance designed to avoid an implied message doesn't pass the smell test. If it doesn't pass the smell test, it certainly doesn't pass the rational basis test.""
The Rest of the Story
Whether or not there is a rational legal basis for allowing Safeway to sell cigarettes but not Walgreens, and to allow one Walgreens to sell cigarettes but not another Walgreens, there is clearly no rational public health basis upon which to formulate such a law.
The courts have traditionally given very wide discretion to local governments in applying the rational basis test. So the court may very well end up ruling in the city of San Francisco's favor. Nevertheless, it is important to note that from a public health standpoint, there is no rational basis for this law.
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?
Moreover, if it sends a mixed message to sell cigarettes at a pharmacy, then does it not also send a mixed message to sell junk food and soda at such a location?
I am in no way defending the sale of tobacco products in pharmacies. If I owned a pharmacy, I would certainly not sell tobacco products. However, the public health advocates who pushed for this law are actually supporting the sale of tobacco products. By arguing that the sale of tobacco products is only inappropriate in a pharmacy, they are implying that the sale of tobacco is fine anywhere else. Apparently, there's no problem selling tobacco products in a grocery store that has a pharmacy, or in a gas station, convenience store, or neighborhood market.
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?
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