USING TOBACCO RETAILER LICENSING TO RESTRICT THE SALE OF TOBACCO PRODUCTS IN PHARMACIES : The San Francisco Experience 2011 APHA Conference Alyonik Hrushow, MPH San Francisco Dept. of Public Health

Presenter Disclosures The following personal financial relationships with commercial interests relevant to this presentation existed during the past 12 months: Alyonik Hrushow No relationships to disclose

Laying the Groundwork  1995 CMA Foundation starts Pharmacy Partnership focusing on independent pharmacies  California funded pharmacy tobacco control projects

Chain Drugstores  Rx for Change advocacy campaign –Independent pharmacies –Rite Aide  Berkeley Tobacco Control Coalition – Longs Drugstore  No change in chains

Tobacco Free Pharmacies: Constellation   Director of Health – initiated, key spokesperson   Mayor’s Office – sponsor; political will to face legal challenges   Tobacco Free Project –technical and community support

Collaborative Campaign   CA LGBT Tobacco Education Partnership –advocacy groundwork, mobilization, media   SF Tobacco Free Coalition supported; took lead to expand ban in 2010

ORDINANCE OVERVIEW  Amended tobacco permit ordinance  Permits no longer issued to stores w/ pharmacies  Findings provided rationale  Initial exemptions removed in 2010

Tobacco Free Pharmacy Ordinance  Regulates conduct – where tobacco cannot be sold, not advertising tobacco cannot be sold, not advertising  PM lawsuit focused on 1 finding that 84% of SF pharmacies selling tobacco displayed tobacco advertising

Arguments for Ordinance 1. Part of health care system “Pharmacy America trusts” “Pharmacy America trusts” 2. Mixed message, tacit approval 3. More tobacco sold, more Rx 4. Many health orgs called for ban *Note: No claim to reduce smoking

Findings in Ordinance  Pharmacies trusted health info source  72% of California consumers surveyed in 6 counties opposed tobacco sales in pharmacies  Pharmacist, consumer support for tobacco free pharmacies

Key Findings Provided Rationale  Pharmacies vs grocery, big box stores  Walgreens, Rite-Aid Rx sales ~65% total sales  Safeway, Costco Rx sales ~ 1- 7% total revenue

Opposition at Hearings  Walgreens led opposition  Recruited opponents:  UFCW (United Food & Comm. Worker) Local 648 Comm. Worker) Local 648  SF Chamber of Commerce

Opponents’ Arguments  Will just buy cigarettes elsewhere  More young adults will go to liquor stores  Union jobs will be lost  Should be voluntary  Exemptions unfair

Two Initial Legal Challenges  Philip Morris-claimed First Amendment right to expression suppressed  Walgreens -claimed violation of equal protection rights

Philip Morris Lawsuit  Complaint-ordinance restricts advertising  SF response: advertising not banned in pharmacies  Complaint – violates 1 st amendment  SF response – regulates conduct

SF Response to PM Suit PM’s voluntary decision to combine advertising with sales 1. Not willing to pay price to continue advertising 2. MSA restrictions voluntary, don’t apply to interior advertising

Product Displays “The fact that advertising accompanies a product that is banned cannot possibly convert the ban the ban into a regulation of speech.” of speech.” Vince Chhabria, Deputy City Attorney Deputy City Attorney

PM Legal Argument 1: PM: Ordinance suppresses implicit messages smoking is acceptable. SF: “Message” used as figure of speech, not literal sense, not suppressing First Amendment expression.

Mixed Message

PM Legal Argument 2: PM: Ordinance based on “antipathy to advertising” “antipathy to advertising” SF Response:  Based on public health concern  Legislative intent irrelevant if regulating conduct

PM Legal Argument 3: PM Legal Argument 3: PM: Preempted by Federal Cigarette Labeling Act SF Response: Not regulating advertising; so not preempted Not regulating advertising; so not preempted

Philip Morris Federal Lawsuit Status  Request for injunction denied  9 th Circuit Court ruled limits where tobacco can be sold, does not prevent PM advertising  Selling tobacco is not “expressive” conduct  Legal challenge dismissed 10/09

Walgreens Lawsuit  Claim: violation of equal rights protection (14 th amendment) rights protection (14 th amendment)  Rational basis test – rational basis for differentiating pharmacies for legitimate government interest basis for differentiating pharmacies for legitimate government interest

Walgreens Lawsuit SF argued:  Govt. interest to protect public health  Used rational basis to differentiate basis to differentiate pharmacies from grocery, big box stores pharmacies from grocery, big box stores

Walgreens Lawsuit  CA Superior Court dismissed case  Walgreens appealed to CA Court of Appeal  Appeals Court ruled ordinance violated equal protection provisions of US, CA constitutions

Walgreens Lawsuit  Court could remedy by striking down entire ban or just the exemptions  SF was proactive – introduced ordinance on 8/3/10 to remove exemptions introduced ordinance on 8/3/10 to remove exemptions  Ordinance amended by BOS 9/28/10

Safeway Lawsuit  Argued have constitutional right to sell cigarettes  Claimed ordinance was preempted by state regulation of pharmacy profession

Safeway Lawsuit  San Francisco filed motion to dismiss lawsuit  California Medical Association filed “friend of the court” brief in support of San Francisco ordinance  US District Court heard motion to dismiss June 2011

Safeway Lawsuit Outcome  Judge dismissed lawsuit on 7/15/2011  No constitutional right to sell cigarettes  SF did not preempt state regulation of pharmacists  CA law allows local regulation of sale and distribution of tobacco products

Conclusion  Legal rulings instructive  Opportunity for others to follow SF  Focus exclusively of where tobacco can be sold, not advertising  No exemptions  Have legal resources available