using tobacco retailer licensing to restrict the sale of tobacco products in pharmacies : the san...

USING TOBACCO RETAILER USING TOBACCO RETAILER LICENSING TO RESTRICT THE SALE LICENSING TO RESTRICT THE SALE

OF TOBACCO PRODUCTS IN OF TOBACCO PRODUCTS IN PHARMACIESPHARMACIES::

The San Francisco ExperienceThe San Francisco Experience

2011 APHA Conference2011 APHA Conference

Alyonik Hrushow, MPHAlyonik Hrushow, MPH

San Francisco Dept. of Public HealthSan Francisco Dept. of Public Health

Presenter DisclosuresPresenter Disclosures

The following personal financial relationships with The following personal financial relationships with commercial interests relevant to this presentation commercial interests relevant to this presentation existed during the past 12 months:existed during the past 12 months:

Alyonik Hrushow

No relationships to disclose

Laying the GroundworkLaying the Groundwork

1995 CMA Foundation starts 1995 CMA Foundation starts Pharmacy Partnership focusing Pharmacy Partnership focusing on independent pharmacieson independent pharmacies

1998-2005 California funded 1998-2005 California funded pharmacy tobacco control pharmacy tobacco control projectsprojects

Chain DrugstoresChain Drugstores

Rx for Change advocacy Rx for Change advocacy campaigncampaign– Independent pharmaciesIndependent pharmacies– Rite AideRite Aide

Berkeley Berkeley TobaccoTobacco Control Coalition Control Coalition

– LongsLongs DrugstoreDrugstoreNo change in chainsNo change in chains

Tobacco Free Pharmacies: Tobacco Free Pharmacies: Constellation 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 CampaignCollaborative Campaign

CA LGBT Tobacco Education Partnership –advocacy groundwork, mobilization, media

SF Tobacco Free Coalition supported; took lead to expand ban in 2010

ORDINANCE OVERVIEWORDINANCE OVERVIEWAmended tobacco permit Amended tobacco permit

ordinanceordinancePermits no longer issued to Permits no longer issued to

stores w/ pharmacies stores w/ pharmacies Findings provided rationaleFindings provided rationale Initial exemptions removed in Initial exemptions removed in

20102010

Tobacco Free Pharmacy Ordinance Tobacco Free Pharmacy Ordinance

Regulates Regulates conductconduct – where – where tobacco cannot be sold, not tobacco cannot be sold, not

advertisingadvertising

PM lawsuit focused on 1 finding PM lawsuit focused on 1 finding that 84% of SF pharmacies that 84% of SF pharmacies selling tobacco displayed selling tobacco displayed tobacco advertisingtobacco advertising

Arguments for OrdinanceArguments for Ordinance

1.1. Part of health care systemPart of health care system “ “Pharmacy America trusts”Pharmacy America trusts”2.2. Mixed message, tacit approvalMixed message, tacit approval3.3. More tobacco sold, more Rx More tobacco sold, more Rx 4.4. Many health orgs called for banMany health orgs called for ban

*Note: *Note: No claim to reduce No claim to reduce smokingsmoking

Findings in Findings in OrdinanceOrdinance

Pharmacies trusted health info Pharmacies trusted health info source source

72% of California consumers 72% of California consumers surveyed in 6 counties opposed surveyed in 6 counties opposed tobacco sales in pharmacies tobacco sales in pharmacies

Pharmacist, consumer support Pharmacist, consumer support for tobacco free pharmaciesfor tobacco free pharmacies

Key Findings Provided Key Findings Provided RationaleRationale

Pharmacies vs grocery, big box Pharmacies vs grocery, big box storesstores

Walgreens, Rite-Aid Rx sales Walgreens, Rite-Aid Rx sales ~65% total sales~65% total sales

Safeway, Costco Rx sales ~ 1-7% Safeway, Costco Rx sales ~ 1-7% total revenue total revenue

Opposition at HearingsOpposition at Hearings

Walgreens led opposition Walgreens led opposition

Recruited opponents:Recruited opponents: UFCW (United Food &UFCW (United Food &

Comm. Worker) Local 648Comm. Worker) Local 648 SF Chamber of CommerceSF Chamber of Commerce

Opponents’ ArgumentsOpponents’ Arguments

Will just buy cigarettes elsewhereWill just buy cigarettes elsewhere More young adults will go to liquor More young adults will go to liquor

storesstores Union jobs will be lostUnion jobs will be lost Should be voluntary Should be voluntary Exemptions unfairExemptions unfair

Two Initial Legal ChallengesTwo Initial Legal Challenges

Philip Morris-claimed First Philip Morris-claimed First Amendment right to expression Amendment right to expression suppressedsuppressed

Walgreens -claimed violation of Walgreens -claimed violation of equal protection rightsequal protection rights

Philip Morris LawsuitPhilip Morris Lawsuit

Complaint-ordinance restricts Complaint-ordinance restricts advertisingadvertising

SF response: advertising not SF response: advertising not banned in pharmaciesbanned in pharmacies

Complaint – violates 1Complaint – violates 1stst amendmentamendment

SF response – regulates conductSF response – regulates conduct

SF Response to PM SuitSF Response to PM Suit

PM’s PM’s voluntary decisionvoluntary decision to to

combine advertising with salescombine advertising with sales

1.1. Not willing to pay price to Not willing to pay price to continue advertising continue advertising

2.2. MSA restrictions voluntary, MSA restrictions voluntary, don’t apply to interior don’t apply to interior advertisingadvertising

Product DisplaysProduct Displays

““The fact that The fact that advertising advertising accompanies a accompanies a product that is product that is banned cannot banned cannot possibly convertpossibly convert the ban the ban into a regulationinto a regulation of speech.”of speech.”

Vince Chhabria,Vince Chhabria, Deputy City AttorneyDeputy City Attorney

PM Legal Argument 1:PM Legal Argument 1:

PM: Ordinance suppresses implicit PM: Ordinance suppresses implicit messages smoking is acceptable. messages smoking is acceptable.

SF: “Message” used as figure of SF: “Message” used as figure of speech, not literal sense, not speech, not literal sense, not suppressing First Amendment suppressing First Amendment expression. expression.

Mixed MessageMixed Message

PM Legal Argument 2: PM Legal Argument 2:

PM: Ordinance based onPM: Ordinance based on

“ “antipathy to advertising”antipathy to advertising”

SF Response:SF Response:Based on public health concernBased on public health concernLegislative intent irrelevant if Legislative intent irrelevant if

regulating conductregulating conduct

PM Legal Argument PM Legal Argument 3: 3:

PM: Preempted by Federal PM: Preempted by Federal Cigarette Labeling ActCigarette Labeling Act

SF Response: SF Response:

Not regulating advertising; Not regulating advertising; so not preemptedso not preempted

Philip Morris FederalPhilip Morris FederalLawsuit StatusLawsuit Status

Request for injunction deniedRequest for injunction denied99thth Circuit Court ruled limits Circuit Court ruled limits

where tobacco can be sold, does where tobacco can be sold, does not prevent PM advertisingnot prevent PM advertising

Selling tobacco is not Selling tobacco is not “expressive” conduct“expressive” conduct

Legal challenge dismissed 10/09Legal challenge dismissed 10/09

Walgreens Lawsuit Walgreens Lawsuit

Claim: violation of equal Claim: violation of equal rights protection (14rights protection (14thth

amendment)amendment)

Rational basis test – rationalRational basis test – rational basis for differentiating basis for differentiating

pharmacies for legitimate pharmacies for legitimate government interestgovernment interest

Walgreens Lawsuit Walgreens Lawsuit

SF argued:SF argued:Govt. interest to protect public Govt. interest to protect public

healthhealthUsed rationalUsed rational basis to differentiatebasis to differentiate pharmacies from grocery, big pharmacies from grocery, big

box storesbox stores

Walgreens LawsuitWalgreens Lawsuit

CA Superior Court dismissed CA Superior Court dismissed casecase

Walgreens appealed to CA Court Walgreens appealed to CA Court of Appealof Appeal

AppealsAppeals Court ruled ordinance Court ruled ordinance violated equal protection provisions violated equal protection provisions of US, CA constitutionsof US, CA constitutions

Walgreens LawsuitWalgreens Lawsuit

Court could remedy by striking down Court could remedy by striking down entire ban or just the exemptionsentire ban or just the exemptions

SF was proactive –SF was proactive – introduced ordinance on 8/3/10 to introduced ordinance on 8/3/10 to

remove exemptionsremove exemptions

Ordinance amended by BOS 9/28/10Ordinance amended by BOS 9/28/10

Safeway LawsuitSafeway Lawsuit

Argued have constitutional right to Argued have constitutional right to sell cigarettessell cigarettes

Claimed ordinance was preempted Claimed ordinance was preempted by state regulation of pharmacy by state regulation of pharmacy professionprofession

Safeway LawsuitSafeway Lawsuit

San Francisco filed motion to dismiss San Francisco filed motion to dismiss lawsuitlawsuit

California Medical Association filed California Medical Association filed “friend of the court” brief in support “friend of the court” brief in support of San Francisco ordinanceof San Francisco ordinance

US District Court heard motion to US District Court heard motion to dismiss June 2011dismiss June 2011

Safeway Lawsuit OutcomeSafeway Lawsuit Outcome

Judge dismissed lawsuit on Judge dismissed lawsuit on 7/15/20117/15/2011

No constitutional right to sell No constitutional right to sell cigarettescigarettes

SF did not preempt state regulation SF did not preempt state regulation of pharmacistsof pharmacists

CA law allows local regulation of sale CA law allows local regulation of sale and distribution of tobacco productsand distribution of tobacco products

ConclusionConclusion Legal rulings instructiveLegal rulings instructive

Opportunity for others to follow SFOpportunity for others to follow SF

Focus exclusively of where tobacco can be Focus exclusively of where tobacco can be sold, not advertisingsold, not advertising

No exemptionsNo exemptions

Have legal resources availableHave legal resources available