Philip Morris USA drops lawsuit against San Francisco

SAN FRANCISCO The nation’s largest cigarette manufacturer has dropped its lawsuit seeking to overturn a controversial San Francisco city ordinance banning the sale of tobacco in retail pharmacies.

City attorney Dennis Herrera announced last week that Philip Morris USA, which had filed the lawsuit in the U.S. District Court in Oakland, Calif., in September 2008, had abandoned it.

The Richmond, Va.-based company had argued that the ordinance violated its First Amendment right to free speech, though judge Claudia Wilken dismissed the company’s request for an injunction in December, noting that the ordinance “prohibits conduct, tobacco sales, not speech about tobacco.” The Ninth Circuit Court of Appeals affirmed the decision last month.

“San Francisco’s local officials have the right and the duty to protect public health, and in this case, they have a compelling rationale,” Herrera said in a statement. “Consumers – and especially young people – should reasonably expect pharmacies to serve their health needs, not to enable our leading cause of preventable death.”

The ordinance, which took effect Oct. 1, 2008, prohibits retail pharmacies in San Francisco from selling tobacco products. Controversially, however, it still allows supermarkets and mass merchandise retailers that operate in-store pharmacies to sell tobacco. That difference prompted a lawsuit from Walgreens on Sept. 8, 2008. That lawsuit, which also aims to strike down the ordinance, is still underway in state courts. Walgreens argues that the law violates its right to equal protection under the California and federal constitutions.

Boston adopted a similar ordinance in February, though that ordinance bans any store that operates a pharmacy from selling tobacco products rather than drug stores alone.