Court backs Walgreens' objection to tobacco ban

San Francisco's first-in-the-nation ban on tobacco sales in drugstores appears to be unconstitutional because it exempts supermarkets and big-box stores that have pharmacies, a state appeals court said Tuesday.

But the First District Court of Appeal left open the possibility that the legal defect could be cured by extending the tobacco ban to all stores that sell prescription drugs, rather than repealing it. The court referred that question to a Superior Court judge.

The ruling is "a powerful condemnation of the legality of the ordinance," said Daniel Kolkey, a lawyer for Walgreens, which filed the suit.