Like a duel to the death with the prize to the victor being death, it seems there are no winners in this morning's legal showdown between San Francisco and Philip Morris at the 9th Circuit Court of Appeals. Well, the winner may be "your lungs," but, at best, the loser would be "your common sense." Allow us to elaborate.
In 2008, San Francisco passed a law that forbade pharmacies such as Walgreens from selling cigarettes -- as they were in the "health-promoting business" -- though it remains perfectly legal for Safeway, Costco, or any of a million liquor stores to hawk tobacco products. Incidentally, "health-promoting" Walgreen's is still permitted to sell Hostess cakes, potato chips, nail polish remover, and any other number of nasty items no human should ever come within 50 meters of. When asked what was keeping San Francisco from passing a "no Coke or Twinkies" edict on Walgreens, City Attorney spokesman Matt Dorsey politely declined to answer.
Meanwhile, San Francisco's law provoked a federal first amendment lawsuit from Philip Morris -- and we have it on good authority that even Satan himself won't let his offspring date employees of Phillip Morris. Amazingly, the company claimed its freedom of speech was being impugned by the city law, an argument shot down by an Oakland district court judge in December. The appeal will be argued by Deputy City Attorney Vince Chhabria at 9:30 this morning in the 9th circuit court in downtown San Francisco.
Meanwhile, Walgreens has also filed suit against the city on the state level, arguing that they are being unfairly singled out in violation of the California constitution's equal protection clause. A judge ruled in the city's favor on that note as well in December -- a very good month for City Attorney Dennis Herrera. Chhabria will argue that case at the state court of appeal at a yet-to-be determined date.
What a predicament! While Philip Morris' first amendment claims seem ludicrous and the company needs only to install Dick Cheney as its CEO to truly become evil incarnate, it's hard to fathom San Francisco's rationale that seeing cigarettes in a Walgreens makes more of an impression on teenagers than spotting them in a Safeway. Yet if Walgreens prevails in its case, then Philip Morris will be the beneficiary.
At least no one has mounted a legal argument claiming that young people unable to buy a pack of smokes at the pharmacy will be forced to head to Costco and purchase 14 cartons ... yet.