Tobacco Sales – City ordinance banning tobacco sales at stores like Walgreens, but not grocery stores or big box stores, does not pass rational basis review

Walgreen Co. v. City and County of San Francisco, et al., 2010 DJDAR 8542 (June 8, 2010).

A city ordinance banned the sale of tobacco products in certain retail establishments that contain a pharmacy.  The ordinance was premised on the notion that a retail store conveys approval of tobacco use when it sells both tobacco and prescription drugs.  The plaintiff filed suit against the city and county claiming the ordinance violated equal protection because there was no rational basis for prohibiting stores with pharmacies from selling tobacco products while allowing such sales in other stores that also contained pharmacies such as grocery stores and “big box” stores.  The trial court sustained the demurrer because it determined the ordinance passed constitutional muster.  The plaintiff appealed. 

         The appeals court reversed the trial court’s ruling.  The appeals court found that the city was concerned with customers being more likely to perceive a tacit message that smoking is not harmful when tobacco products are sold in stores like the plaintiff’s, as opposed to sales of such products at a supermarket or a big box store.  The court found no reason to believe the implied message conveyed by the plaintiff was any different from that conveyed by a supermarket or big box store.  Thus, the plaintiff’s complaint adequately stated an equal protection claim and a trial court erred in sustaining the city’s demurrer.

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