A San Francisco ordinance prohibiting tobacco sales in drugstores could violate the equal protection clauses of the state and federal constitutions, a state appeal court ruled Tuesday.
The unanimous decision by San Francisco's 1st District Court of Appeal reverses a demurrer in the city's favor and lets Walgreen Co. go ahead with a suit challenging the controversial ordinance
"Should Walgreens ultimately prevail on its equal protection causes of action," Administrative Presiding Justice William McGuiness wrote in the 33-page ruling, "the court will be required to determine whether the appropriate remedy is to preclude enforcement of the entire ordinance or to invalidate only the exceptions contained in" San Francisco's health codes.
The San Francisco law outlaws the sale of tobacco products in drugstores, but exempts supermarkets, such as Safeway, and big-box stores, such as Costco, that contain pharmacies.
The appeal court said the disparate treatment of various types of stores might not be "rationally related" to a legitimate legislative end. The justices rejected the city's arguments that tobacco sales by pharmacies send a stronger message of acceptance than by other stores.
"There is no plausible reason to believe," McGuiness wrote, "that members of the public place any greater reliance on implicit advice regarding the healthfulness of tobacco products conveyed by counter clerks, the corporate structure or the product mix of a Walgreens than of a Safeway or Costco."
Justices Stuart Pollak and Martin Jenkins concurred.
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