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Thursday, March 10, 2011

Safeway Sues Over San Francisco Tobacco Ban

Posted By on Thu, Mar 10, 2011 at 4:29 PM

click to enlarge Butt out, Safeway says.
  • Butt out, Safeway says.

Safeway Inc. has sued San Francisco over a law banning tobacco sales in stores containing pharmacies, claiming that the law gives an unfair advantage to markets that don't sell prescription drugs.

The lawsuit calls the tobacco ban "arbitrary and capricious," and "a denial of Safeway's due process rights under the 14th Amendment to the U.S. Constitution."

A spokesman for City Attorney Dennis Herrera, however, said the suit has no merit.

"We think the lawsuit is frivolous, and we believe the court will dismiss the case," said Jack Song, Herrera's spokesman.

Safeway's suit, filed Feb. 18, is the latest in a string of lawsuits challenging a 2008 law banning tobacco sales in pharmacies. A lawsuit by corporate tobacconist Philip Morris was thrown out. But a California appeals sided with Walgreens, after the company sued claiming San Francisco's law allowed unfairly allowed grocery stores to sell tobacco -- even if the stores contained pharmacies.

To work around the Walgreen decision, the Board of Supervisors passed legislation that amended the 2008 law by adding Costco, Safeway, and any other stores containing pharmacies, to the no-tobacco sales list.

The idea was to nullify Walgreens' lawsuit. But it spawned new litigation by Safeway, which said it feels it's now being singled out.

The amended ordinance's attempt "to distinguish

between retail grocery stores without licensed pharmacies and those with licensed pharmacies

does not in any principled way justify the unequal and prejudicial treatment afforded to retail

grocery stores with pharmacies somewhere on their premises," the lawsuit said.

Song, however, said the city will prevail because San Francisco's tobacco sales ban was written expressly to satisfy appeals court judges.

"We're doing exactly what the California Court of Appeals told us to do. They asked us to treat all stores with pharmacies the same, and that's exactly what we're doing now," Song said.

Update 3/10, 2011, 5 p.m.:

In response to an inquiry, Safeway spokeswomanSusan Houghton wrote us the following note:

We believe the SF ordinance unfairly penalizes only those retailers that provide pharmacy services to the public. Safeway is first and foremost a retail grocery store that happens to sell health and wellness products. There are many other stores in the city that provide these same products but without a pharmacy. Yet they are still allowed to sell tobacco.

Less restrictive alternatives (such as no sales within so many feet of a pharmacy or at the pharmacy register) could have also been included in the ordinance. But with the ordinance in place now, we're forced to give up a portion of our business in 10 Safeway stores in the city in order to provide local residents with a grocery store. We believe that's unconstitutional and we've had complaints from many customers who are now forced to go to more than one store to pick up all their grocery needs.

As a point of reference, all tobacco products at Safeway are always under lock/key behind a customer service counter - at the opposite end of the where our pharmacy services are located. We believe this is a good deterrent for anyone underage, but still allows those customers of age to purchase what they need.

In a follow up interview, we asked Houghton why Safeway insists on tobacco.

We're providing food and products to our customers who want them. It's chosing one lawful business over another. And we want to be able to sell the products and services our customers desire to purchase. Now we have 15 stores in the city, and 10 of them are not able to sell tobacco products to people that desire them. What we've heard from our customers is, if I want to go out and buy milk and cigarettes, I have to make two trips.

But that's kind of the idea of the legislation: to encourage people to stop smoking. Does Safeway support that?

We offered to institute a number of education programs as part of this. We do think that

if the true intent of the law is to stop the assocaition of tobacco with health and wellness facilities, any store that sells health and wellness prducts shoujhld be excluded from selling tobacco.

That may well be. But if this means they have to ban tobacco sales at yoga studios, San Francisco will have a real fight on its hands.

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