TOBACCO CONTROL LAWS

Walgreen Co. v. City and County of San Francisco, et al.

A pharmacy challenged the constitutionality of a city ordinance that was enacted to disassociate tobacco products from the health-promoting perception of pharmacies by prohibiting the sale of tobacco products in retail stores containing a pharmacy.  The plaintiff claimed that exemptions from the restriction for grocery stores and for stores occupying an area greater than 100,000 square feet violated the constitutional guarantee of equal protection for lack of a rational basis.  Upon appeal, the Court held that the pharmacy's pleadings demonstrated that the disparate treatment of retail establishments lacked a rational basis, noting that all establishments that sold tobacco products and hosted a pharmacy presented the same danger of causing an association between tobacco and health promotion.  The Court overturned the trial court's ruling in favor of the defendants and remanded the case for continued proceedings at the trial level.

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Walgreen Co. v. City and County of San Francisco, et al., 185 Cal. App. 4th 424, Court of Appeals of California (2010).

  • United States
  • Jun 8, 2010
  • Court of Appeals of California, First District, Division Three

Parties

Plaintiff Walgreen Co.

Defendant

  • City and County of San Francisco
  • Others

Legislation Cited

San Francisco City Ordinance Number 194-08

Related Documents

None

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.

Tobacco Control Topics

Advertising, Promotion and Sponsorship
Measures restricting any form of direct or indirect tobacco advertising, promotion and sponsorship. (See FCTC Art. 13)

Substantive Issues

Right to Equal Protection
A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
Procedural Defect
The court might consider procedural matters without touching the merits of the case. These might include: improper joinder, when third parties, such as Health NGOs or government officials, seek to become parties to the suit; lack of standing, where a plaintiff fails to meet the minimum requirements to bring suit; lack of personal jurisdiction, where the court does not have jurisdiction to rule over the defendant; or lack of subject matter jurisdiction, where the court does not have jurisdiction over the issue at suit.

Type of Tobacco Product

None

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