Ray Theodore reports, “In a brief, unpublished decision the three-judge panel unanimously found that the ban is permissible because it restricts the sale of cigarettes and not cigarette advertising” (Andrews Publications for FindLaw, 9/16). The court reject the argument that the product itself is an advertisement and found that the sale of cigarettes does not involve expressive conduct that would be protected by the first or fourteenth amendments.
The ban, “which took effect Oct. 1, 2008, seeks to address concerns that smoking is “legitimized” by allowing cigarette sales in pharmacies, whose primary mission is to serve consumers' medical and health needs.”
The ban, however, does not affect other stores, such as groceries and mega stores, whose primary purpose is not to serve customers medical and health needs.
As a personal injury lawyer who has seen many cases involving the aftermath of smoking cigarettes, I am pleased with this progressive decision.