Business/Finance

Philip Morris: it's our First Amendment right to speech to sell tobacco in San Francisco pharmacies

The city council of San Francisco has issued an ordinance that pharmacies are not allowed to sell tobacco products. The intent is to eliminate mixed messages about a pharmacy, ostensibly devoted to healing people, selling unhealthy tobacco. But two companies are suing the city of San Francisco in federal court to overturn the ban. The first, Walgreens, is suing because only stand-alone pharmacies are affected by the ban – grocery stories and big-box stores with pharmacies are not affected. Their legal logic is that the tobacco sales ban is discriminatory toward stand-alone pharmacies, and they have a point. Whether it’ll hold up in court is another question (the federal judge refused to delay the ban, due to start on October 1, while the lawsuit is being heard), and one I’ll not even attempt to address.

The second company, Philip Morris, is suing using a totally different legal logic. They say it’s an unconstitutional abridgment of their First Amendment right to free speech.

In 2003, the Supreme Court dismissed Nike, Inc., et al, Petitioners v. Marc Kasky (with dissents on the dismissal by Justice Breyer and Justice Kennedy). According to the dismissal concurrence (linked above), the case essentially involved a private California citizen (Marc Kasky) suing Nike for unfair and deceptive practices under California’s Unfair Competition Law, specifically that “Nike made a number of ‘false statements and/or material omissions of fact’ concerning the working conditions under which Nike products are manufactured.” Nike’s response was that Kasky’s suit was unconstitutional since Nike had a First Amendment right (ostensibly guaranteed by its status as a juristic person) to say anything it wanted in its “commercial speech” (ie advertising). The Supreme Court initially granted, and then subsequently dismissed without deciding the constitutional questions, a hearing on this issue.

According to the San Francisco Chronicle article, Philip Morris is claiming that “‘…the purpose and effect of the ordinance is to suppress communications directed to adult smokers, in violation of our constitutional rights’, said Joe Murillo, a lawyer representing Philip Morris USA.” Understandably, the director of the city’s Department of Public Health, Mitch Katz, is not impressed:

“Do you remember any part of the Bill of Rights being about pharmacies selling tobacco?” he asked. “Philip Morris has fought every attempt by public health officials to save lives by curbing smoking … It’s a badge of honor for anyone in public health to be sued by Philip Morris”

It’s probably not a coincidence that Philip Morris is suing in California, the same state that brought the question of corporate personhood and First Amendment protections for commercial speech before the Supreme Court previously. California was one of the first states to adopt false advertising legislation (Sections 17500-17509 of California State Law), and California’s restrictions on both advertising and unfair competition are quite strict. In addition, California is the nation’s largest single market and as such it drives much of the nation’s regulations(which is why energy and automobile companies fight tooth and claw against California’s strict carbon emissions law, among others). A win in California would have a great deal of influence on regulations throughout the rest of the country, including at the federal level with the Federal Trade Commission’s Bureau of Consumer Protection – Advertising Practices Division.

For more on corporate personhood, please visit Reclaim Democracy.

Related Posts:
Money, speech, and corporate personhood
Have we finally discovered a disadvantage to corporate personhood?

9 replies »

  1. I have smoked for 52 years I started buying them in chain grocery stores. I was nearly crippled by Doctor prescribed statin drugs sold in all pharmacies. Nearly all stores sell liquor, a greater health hazzard than somking. Nearly all stores sell regular and diet sodas and energy drinks all of which have come under fire as health hazzards. This is clearly discriminatory. One can only wonder who is behind this action. Most likely ex smokers. Isolating, discriminating against and criminalizing one segment of the population for something they have done legally for hundreds of years will have un-intended consequences. Do you really want to live in a world with a couple of billion ex smokers?” Careful what you ask for. If we stop, you can start paying for your own medical expences we are tired of paying for everyone elses vices including over eating.
    Cheers

  2. Nearly Crippled – I can appreciate your point, but you’ve ignored the entire thrust of the post, which is that Philip Morris claims to have a First Amendment, free speech right to sell tobacco. Can you tell me how a company (not a person) has a free speech right to sell something? Or to market their product?

  3. The Constitution needs to be Amended/Clarified to remove person hood from companies. They are not people, they don’t have inherent rights, they have rights granted by law. Companies are pieces of paper, not persons. Their rights end where we say they end because we’re humans with the inherent right to govern and protect ourselves. Companies rely on our protection, they have no, nor should they have, inherent rights.

    Corrupted public officials created this nightmare by giving companies Constitutional protections instead of legal protections. It was done on purpose, and has been used at every turn to abuse living people.

    Undo this folly, or suffer the consequences.

    And MY free speech is abridged in various places for public good, so the same principle should hold for corporations.

  4. About what one would expect from people that did not bother to read the article and therefore missed the part about Walgreens. Ex smokers?
    Cheers

  5. Nearly crippled – I wrote it, and here’s what I wrote in the first paragraph:

    The first, Walgreens, is suing because only stand-alone pharmacies are affected by the ban – grocery stories and big-box stores with pharmacies are not affected. Their legal logic is that the tobacco sales ban is discriminatory toward stand-alone pharmacies, and they have a point. Whether it’ll hold up in court is another question (the federal judge refused to delay the ban, due to start on October 1, while the lawsuit is being heard), and one I’ll not even attempt to address. (emphasis added)

    So, obviously, I noticed the part about Walgreens, but chose to address Philip Morris’ claim to be a person instead. You’ve chosen to ignore it entirely.

    I’ll ask again – do you think that a corporation like Philip Morris (or Nike, or IBM, or Microsoft, or…) should be granted the constitutional rights of a flesh and blood human being? And do you think that commerce (the sale of a product and the marketing of that product, in this case tobacco) is protected free speech?

  6. Savantster – damn right. The problem is that the Supreme Court has, over the years, granted certain constitutional rights to corporations. Some of the rights sort of make sense, but by making them constitutional, it requires a Supreme Court decision to overrule.

    Giving juristic persons the rights of real, live, flesh-and-blood human beings is rock stupid, especially when said juristic persons are corporations with more income than most nations and are multi-national or extra-national. This applies especially to the “political donations = free speech” nonsense.

  7. While i disagree with the “lets ban tobacco” crusade, and for the same reason i disagree with the “lets ban abortion” crusade, i’m in complete agreement with the thrust of the post.

    How a limited liability corporation can be given the rights of an individual boggles my mind. Were the company wholly owned by a single person, the argument might work. But somehow, the LLCs of America have managed to gather all the “rights” that i have while evading any of the responsibilities.

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