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