Safeway Lawsuit Against San Francisco Highlights the Irrationality and Lack of Public Health Basis of Pharmacy Tobacco Sales Bans

Consider the following four facts about the city of San Francisco's law which prohibits cigarette sales in certain types of stores:

ONE

San Francisco's 7-Eleven stores sell the following medicines that are designed to improve human health by helping to treat illness:

• Aspirin (an analgesic and anti-pyretic)
• Tylenol (an anti-inflammatory drug)
• Advil (an anti-inflammatory drug)
• Claritin (an anti-histamine)
• DayQuil (a combination of analgesic, anti-pyretic, cough suppressant, and decongestant)
• NyQuil (a combination of analgesic, anti-pyretic, cough suppressant, and anti-histamine)
• Aleve (an anti-inflammatory drug)
• Motrin (an anti-inflammatory drug)
• Pepcid (a treatment for gastroesophageal reflux)

San Francisco's Walgreen's stores also sell the following medicines that are designed to improve human health by helping to treat illness:

• Aspirin (an analgesic and anti-pyretic)
• Tylenol (an anti-inflammatory drug)
• Advil (an anti-inflammatory drug)
• Claritin (an anti-histamine)
• DayQuil (a combination of analgesic, anti-pyretic, cough suppressant, and decongestant)
• NyQuil (a combination of analgesic, anti-pyretic, cough suppressant, and anti-histamine)
• Aleve (an anti-inflammatory drug)
• Motrin (an anti-inflammatory drug)
• Pepcid (a treatment for gastroesophageal reflux)

There's just one difference. According to city law, the first set of stores (7-Elevens) can sell cigarettes, but the second set of stores (Walgreen's) cannot.

This is because Walgreen's also contain a pharmacy and the city's law prohibits the sale of tobacco products in any store that contains a pharmacy.

TWO

There are 15 Safeway grocery stores in San Francisco. At 10 of these stores, cigarettes cannot be sold. At 5 of the stores, cigarettes can be sold. They are exactly the same store: Safeway. Yet 10 can sell cigarettes and 5 cannot. Clearly, the public doesn't see these stores as being different. They are all Safeways.

To be clear:
The Safeway at 1335 Webster Street cannot sell cigarettes, but the Safeway at 350 Bay Street can.
The Safeway at 2020 Market Street cannot sell cigarettes, but the Safeway at 145 Jackson Street can.
The Safeway at 2300 16th Street cannot sell cigarettes, but the Safeway at 3350 Mission Street can.
The Safeway at 298 King Street cannot sell cigarettes, but the Safeway at 5290 Diamond Heights Boulevard can.
The Safeway at 15 Marina Boulevard cannot sell cigarettes, but the Safeway at 625 Monterey Boulevard can.

There's just one difference. According to city law, the first set of stores (Safeways) cannot sell cigarettes, but the second set of stores (Safeways) can.

THREE

The Safeway store at 145 Jackson Street offers adult immunizations. However, it is allowed to sell cigarettes.

The Safeway at 298 King Street does not offer any immunizations. However, it is not permitted to sell cigarettes.

There's just one difference. According to city law, the first store (Safeway) can sell cigarettes, but the second store (Safeway) cannot.

FOUR

The Safeway store at 145 Jackson Street sells health-related items, including medicines. In addition to offering immunizations against seasonal influenza, pneumonia, and the H1N1 virus, it sells a host of medicines, including Allegra, which (for those of you in the Bay Area), is on sale this week for $17.99 (20-count; 12-hour relief).

This store - which offers all of these immunizations and sells all of these medicines - can, by law, sell cigarettes. And it does sell cigarettes, to go with its immunizations and medicines.

The Rest of the Story

The obvious irrationality of San Francisco's law banning cigarette sales at pharmacies is readily apparent when you examine the preposterous situation it has created.

Some stores that sell medicines to help people recover from illness can sell cigarettes, while others cannot.

Some Safeways can sell cigarettes, while others cannot.

A Safeway that offers immunizations and sells medicines can sell cigarettes, while another Safeway that does not offer immunizations cannot sell cigarettes.

The city argues that the law is intended to prevent stores that sell healthful items - medications to be exact - from also selling an unhealthful item: cigarettes. However, the Safeway store at 145 Jackson Street and does offer lots of medicines as well as immunizations is allowed to sell cigarettes by this law, while its counterpart at 298 King Street which does not offer immunizations cannot sell cigarettes.

The irrationality of this law is the basis of a lawsuit that Safeway has filed against the city. A Safeway spokeswoman pointed out: "Safeway is first and foremost a retail grocery store that happens to sell health and wellness products. There are many other stores in the city that provide these same products but without a pharmacy. Yet they are still allowed to sell tobacco."

While the lawsuit may not ultimately succeed because the courts generally give wide discretion to governments when applying the rational basis test (an ordinance may discriminate against certain types of stores as long as there is some rational basis for that discrimination), it is very clear that the ordinance lacks any rational public health basis.

The rest of the story is that there is no rational public health basis for this law.