S.F. Ban on Tobacco in Drugstore Survives

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    S.F. ban on tobacco in drugstores survives

    09-09) 16:35 PDT SAN FRANCISCO -- San Francisco can enforce its ban on tobacco sales in drugstores, a federal appeals court ruled Wednesday, rejecting a free-speech argument by tobacco giant Philip Morris.

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    The ordinance, the first of its kind in the nation, took effect in October 2008. It prohibits sales of cigarettes and other tobacco products at San Francisco's nearly 60drugstores.

    Philip Morris said the ban effectively forced the company to pull its advertising out of the stores, interfering with its constitutional right to communicate with customers. But the Ninth U.S. Circuit Court of Appeals in San Francisco said the city hasn't restricted freedom of expression.

    The city "limits where cigarettes may be sold; it doesn't prevent (Philip Morris) from advertising," the court said in a 3-0 ruling upholding a judge's denial of an injunction against the ordinance.

    Even if the measure affects advertising in drugstores, the court added, it does not suppress any ideas or the company's ability to discuss its product.

    Philip Morris could appeal the ruling to the U.S. Supreme Court.

    "The purpose and effect of the ordinance is to suppress communications directed to adult smokers, in violation of our constitutional rights," said company spokesman Jack Marshall.

    The city's lawyer, Deputy City Attorney Vince Chhabria, said, "We are not surprised the court concluded that Philip Morris has no First Amendment right to sell cigarettes in drugstores."

    A state appeals court is considering a separate lawsuit by Walgreens, which says the ordinance discriminates against drugstores by allowing supermarkets and big-box retail stores with pharmacies to sell tobacco.

    Bob Egelko, Chronicle Staff Writer
    Wednesday, September 9, 2009

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