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.
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
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.
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.
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
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"In its trial court briefs and again at oral argument in this court, the City contended the Board of Supervisors could have rationally excluded big box stores and grocery stores from the ordinance for economic reasons. Citing an article from the San Francisco Chronicle, the title of which suggests that supermarkets are an "endangered species" in the City, the City urges it is rational to favor supermarkets over stores such as Walgreens in order to discourage them from leaving the City. This proffered rationale is insufficient to support the differential treatment afforded to grocery stores, big box stores, and all other pharmacies. Among other things, the article on which the City relies postdates the enactment of the ordinance and is not contained in the record on appeal. In any event, the article's contents are not a proper subject of judicial notice and therefore may not be considered by this court on review of a ruling sustaining a demurrer. (See Zelig v. County of Los Angeles, supra,27 Cal.4th at p. 1126 [on review of demurrer court considers only complaint and matters subject to judicial notice]; Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1191-1192 [35 Cal.Rptr.3d 357][court may take judicial notice of document's existence but not truth of its contents].) Furthermore, the rationale for favoring supermarkets is questionable, at best. There is nothing in the record to suggest the City has a policy of favoring supermarkets over stores such as Walgreens, and none of the ordinance's findings mention an economic basis for the exemptions afforded to general grocery stores. Moreover, given that big box stores as well as general grocery stores enjoy the exemption from the ban on sales of tobacco products, it seems unlikely the exemption could have been motivated by a desire to encourage supermarkets to remain in the City. In short, the economic rationale for the exemption falls into that category of "`"fictitious purposes that could not have been within the contemplation of the Legislature...."' [Citation.]" (Hofsheier, supra, 37 Cal.4th at p. 1201; see Warden v. State Bar, supra, 21 Cal.4th at p. 649.) For the reasons set forth above, Walgreens's complaint adequately states causes of action for a violation of the equal protection provisions of the United States and California Constitutions. The order sustaining the City's demurrers to the first and second causes of action therefore must be reversed."
"We now turn to the question of whether there is a rational basis for exempting general grocery stores and big box stores that contain licensed pharmacies from the ban on sales of tobacco products applicable to all other retail establishments containing licensed pharmacies. We do not question the premise that the presence of a licensed pharmacy within any retail establishment provides a rational justification for prohibiting that store from selling tobacco products, but that is not the question before us. What must be decided here is whether the legitimate objectives of discouraging smoking and avoiding the suggestion that a health care purveyor approves of cigarette smoking provides a rational justification for prohibiting retail establishments such as Walgreens—which contains a licensed pharmacy in the rear of the store—from selling tobacco products, while permitting a competing retail establishment such as Safeway or Costco—which sells many of the same products and also has a licensed pharmacy on premises—to sell the very same tobacco products."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
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.