2011 APHA Conference Alyonik Hrushow , MPH San Francisco Dept. of Public Health

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

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

3. Laying the Groundwork 1995 CMA Foundation starts Pharmacy Partnership focusing on independent pharmacies 1998-2005 California funded pharmacy tobacco control projects

4. Chain Drugstores • Rx for Change advocacy campaign • Independent pharmacies • Rite Aide • Berkeley Tobacco Control Coalition • LongsDrugstore • No change in chains

5. 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

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

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

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

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

10. 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

11. 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

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

13. 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

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

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

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

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

18. 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.

19. Mixed Message

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

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

22. Philip Morris FederalLawsuit Status • Request for injunction denied • 9th 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

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

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

25. 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

26. 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 • Ordinance amended by BOS 9/28/10

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

28. 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

29. 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

30. 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