The battle between tobacco companies and the US government has come to light with the filing of two lawsuits this past year. In one, tobacco company Philip Morris USA, claimed that a new San Francisco law banning the sale of cigarettes in pharmacies “violates its free-expression right to sell its products” (1). The second lawsuit involved Walgreens filing suit, arguing that because the law only included pharmacies and not larger grocery-style stores, it was discriminatory and could affect the store financially.
The Philip Morris case centers on the right of tobacco companies to have their products advertised and communicated to adult consumers. “Although called a ban on sales, the purpose and effect of the ordinance is to suppress communications directed to adult smokers, in violation of our constitutional rights,” said Joe Murillo, a lawyer representing Philip Morris USA (3). Advocates of the bill claim that specialized pharmacies should not carry cigarettes because of the health risks involved with them. Also, according to the Police Powers granted by the Tenth Amendment, the State has the power to “enact reasonable laws to protect public health, public morals, public safety, and the general welfare of the community” (3). However, it seems to be up to the courts to find a compelling government interest in regulating what products are sold in a particular store, especially if there is limited evidence as to whether or not there is a correlation between how pharmacies sell tobacco and youth/ adult access to these products (3).
The Walgreens case focuses the financial interest of Walgreens in cigarette sales. Recently, Walgreens filed a brief stating, “the company would lose millions of dollars, equal to nine percent of a store’s non-pharmacy sales, if the ban takes effect” (3). The company continued that “the city is discriminating by not applying the ban to grocery stores or big-box stores that have pharmacies within them and also sell cigarettes” (2). City attorneys, however, argue that “the public trusts pharmacies as health-promoting businesses and that the sale of tobacco by drugstores ‘sends an implicit message that smoking is acceptable’” (2). Walgreens argues that the law is financially discriminatory, and that customers who would usually buy cigarettes from them will now go to the larger “big-box” stores that are not included in the ban.
I believe that the San Francisco ban is, indeed, in violation of pharmacy and tobacco companies’ rights because I do not believe that the government has any particular interest in telling pharmacies what they can and can’t sell. Yes, cigarettes are a health hazard, however, just because a pharmacy sells cigarettes does not mean the consumer has to buy them. Walgreens also has a financial interest to protect; the ban clearly favors their “big-box” and grocery competitors. In the precedent case Lorillard Tobacco Co. v. Reilly, Chief-Justice Sandra Day O’Connor wrote that “The state’s interest in preventing underage tobacco use is substantial, and even compelling, but it is no less true that the sale and use of tobacco products by adults is a legal activity” (4). Consumers have a choice whether or not to smoke cigarettes, thus, where they are sold (even at a pharmacy where “good health” is advocated), is inconsequential. O’Connor continues in Lorillard that “We must consider that tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products… As the State protects children from tobacco advertisements, tobacco manufacturers and retailers and their adult consumers still have a protected interest in communication” (4). An act by the State to regulate what a store sells clearly infringes upon the rights of that store, as well as the industry that the ban effects. If our government is capable of having this sort of jurisdiction in relation to the freedom of speech, think what they’ll ban next.
(1) http://firstamendmentcenter.org/news.aspx?id=20602
(2) http://www.nbc11.com/newsarchive/17592901/detail.html
(3) http://tobaccoanalysis.blogspot.com/2008/09/philip-morris-and-walgreens-file-suit.html
(4) http://www.firstamendmentcenter.org/analysis.aspx?id=4898
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