Marin County Municipal Code Ch. 5.80 Prohibition Against Tobacco Product Sales at Pharmacies

This chapter applies to all drugstores, pharmacies and any retail store that contains a pharmacy.

(Ord. No. 3616, § I, 2014)

The board of supervisors hereby finds and declares as follows:

(1) Tobacco is the leading cause of preventable death in the United States and the leading risk factor contributing to the burden of disease in the world's high-income countries; [35]

(2) In addition to its health impact, tobacco related death and disease has an economic impact. In 1999, the economic costs of smoking in California were estimated to be four hundred seventy-five dollars per resident or three thousand three hundred thirty-one dollars per smoker, for a total of nearly $15.8 billion in smoking-related costs (1999 dollars). Those same costs in 2008 dollars would be six hundred fourteen dollars per resident or four thousand three hundred ten dollars per smoker for a total of nearly $20.4 billion dollars; [36]

(3) The American Diabetes Association's standards of medical care in diabetes call for smoking cessation as well as prescription drug therapy; [37]

(4) Through the sale of tobacco products, drug stores convey tacit approval of the purchase and use of tobacco products. This approval sends a mixed message to consumers who generally patronize pharmacies for health care services; [38]

(5) "Ending the sale of cigarettes and tobacco products at CVS/pharmacy is the right thing for us to do for our customers and our company to help people on their path to better health," said Larry J. Merlo, President and CEO, CVS Caremark. "Put simply, the sale of tobacco products is inconsistent with our purpose"; [39]

(6) In a Journal of the American Medical Association (JAMA) Viewpoint published online this morning, Brennan and co-author Steven A. Schroeder, Director, Smoking Cessation Leadership Center, University of California, San Francisco, wrote, "The paradox of cigarette sales in pharmacies has become even more relevant recently, in large part because of changes in the pharmacy industry. Most pharmacy chains are retooling themselves as an integral part of the health care system"; (Feb. 5, 2014) [40]

(7) "Removing tobacco products from our stores is an important step in helping Americans to quit smoking and get healthy," commented Helena B. Foulkes, President, CVS/pharmacy; [41]

(8) The Tobacco Education and Research Oversight Committee for California, as well as the American Pharmacists Association, the California Pharmacists Association, and the California Medical Association have called for the adoption of state and local prohibitions of tobacco sales in drug stores containing pharmacies; [42]

(9) A majority (seventy-eight percent) of independently owned pharmacies in California have become tobacco free; however, tobacco products are still sold by ninety-four percent of chain drug stores; [43]

(10) Of the independently owned pharmacies that are tobacco-free, eighty-eight percent report they have experienced either no loss or an increase in business since removing tobacco from their shelves; [44]

(11) An overwhelming percentage of California consumers (ninety-six and eight-tenths percent) indicate that they would continue to patronize their pharmacy or drug store as often or more often if it stopped selling tobacco products; [45]

(12) A large majority (seventy-two and three-tenths percent) of California consumers are opposed to the sale of tobacco products in drug stores and nearly one-half of California smokers (forty-nine and seven-tenths percent) disagree or strongly disagree that tobacco products should be sold through drug stores; [46]

(13) Only thirteen and two-tenths percent of chain drug store pharmacists are in favor of the sale of tobacco products in drug stores; [47]

(14) In a 2003-2004 national survey of pharmacy students, nearly three-quarters (seventy-one percent) of those surveyed were against tobacco sales in pharmacies. These findings were aligned with the 2003 Resolution of the American Association of Colleges of Pharmacy that encourages pharmacy schools to use only training sites that do not sell tobacco products; [48]

(15) Clinicians can have a significant effect on smokers' probability of quitting smoking; [49]

(16) Most health care institutions have adopted policies that have banned tobacco sales and created smoke-free environments. In spite of numerous resolutions and recommendations by state and national pharmacy organizations calling for pharmacies to stop selling tobacco, some community pharmacies in the United States continue to sell tobacco products; [50] and

(17) Prescription drug sales for chain drug stores represent a significantly higher percentage of total sales than for grocery stores and big box stores that contain pharmacies. According to the 2007 Rite Aid annual report, prescription drugs sales represented sixty-three and seven-tenths percent of total sales in fiscal [year] 2007. Walgreen's 2007 annual report documented prescription sales as approximately sixty-five percent of net sales that year. Pharmacy sales at Safeway have been estimated at seven and one-half percent of annual volume. Costco's prescription sales generated one and one-half percent of total revenue in 2002. [51]

(Ord. No. 3616, § I, 2014)

Footnotes:

--- (35) ---

Mokdad AH, Marks JS, Stroup DF, Gerberding JL. Actual causes of death in the United States, 2000. JAMA 2004; 291:1238-45. [PubMed]; Lopez AD, Mathers CD, Ezzati M, Jamison DT, Murray CJL. Global burden of disease and risk factors. New York; Washington, DC: Oxford University Press; World Bank; 2006.

--- (36) ---

Max W, Rice DP, Zhang X, Sung H-Y, Miller L. The Cost of Smoking in California, 1999. Sacramento, CA: California Department of Health Services, 2002. 2008 dollar figures calculated based on the Consumer Price Index from 1999 compared to 2008. A 1999 dollar is worth 29% more than a 2008 dollar. http://minneapolisfed.org/research/data/us/calc/

--- (37) ---

American Diabetes Association. Standards of Medical Care in Diabetes. http://care.diabetesjournals.org/cgi/content/full/30/suppl\_1/S4#SEC14

--- (38) ---

Hudmon K, et al, Tobacco in Pharmacies: time to quit. Tobacco Control Journal 2006:15:35-38.

--- (39) ---

Larry J. Merlo, President and CEO, CVS Caremark, WOONSOCKET, R.I., Feb. 5, 2014 /PRNewswire/ http://info.cvscaremark.com/newsroom/press-releases/cvs-caremark-stop-selling-tobacco-all-cvspharmacy-locations

--- (40) ---

Brennan and co-author Steven A. Schroeder, Director, Smoking Cessation Leadership Center, University of California, San Francisco, WOONSOCKET, R.I., Feb. 5, 2014 /PRNewswire/ http://info.cvscaremark.com/newsroom/press-releases/cvs-caremark-stop-selling-tobacco-all-cvspharmacy-locations

--- (41) ---

Helena B. Foulkes, President, CVS/pharmacy, WOONSOCKET, R.I., Feb. 5, 2014 /PRNewswire/ http://info.cvscaremark.com/newsroom/press-releases/cvs-caremark-stop-selling-tobacco-all-cvspharmacy-locations

--- (42) ---

Tobacco Education and Research Oversight Committee for California. Confronting a Relentless Adversary: A Plan for Success Toward a Tobacco-Free California 2006-2008; March 2006.

--- (43) ---

How Californians Really Feel about Tobacco in Pharmacies. October 2000. Fact sheet developed by Prescription for Change a project of the California Medical Association Foundation funded by the California Department of Health Services, Tobacco Control Section, Grant No. 00-90381. Robinson G. Chain Drugstore Polices and Attitudes about Tobacco Sales and Promotions, Phase II - Executive Summary; California Medical Association Foundation, Pharmacy Partnership Project. San Francisco, CA: CMA Foundation, Pharmacy Project, 2000.

--- (44) ---

Prescription for Change Fact Sheet. op. cit.

--- (45) ---

Robinson G. California Adult Consumer Survey Pharmacies and Drugstores Selling Tobacco Products - Phase II: Executive Summary, 1997-2000; California State University Fullerton, Social Science Research Center; California Medical Association Foundation, Pharmacy Partnership Project. California State University Fullerton, Social Science Research Center; California Medical Association Foundation, 2000.

--- (46) ---

Robinson G. California Adult Consumer Survey. ibid.

--- (47) ---

Robinson G. Chain Drugstore Polices. op. cit.

--- (48) ---

Hudman KS, Hussar D, Fenlon C, Corelli R. Pharmacy students' perceptions of tobacco sales in pharmacies and suggested strategies for promoting tobacco-free experiential sites. Am J Pharm Educ. 2006; 70:75. [PubMed]

--- (49) ---

Fiore MC, Bailey WC, Cohen SJ, et al. Treating tobacco use and dependence: clinical practice guideline. Rockville, Maryland: Public Health Service, 2000. Silagy C, Stead, LF. Physician advice for smoking cessation. Cochrane Database Systematic Review 2001; 2:CD000165.

--- (50) ---

Eule B, Sullivan MK, Schroeder SA, Hudmon KS. Merchandising of cigarettes in San Francisco pharmacies: 27 years later. Tobacco Control 2004:13:429-432. [PubMed]

--- (51) ---

http://www.riteaid.com/www.riteaid.com/w-content/images/company/investors/anrpts/annual07.pdf; http://files.shareholder.com/downloads/WAG/263194730x0x147120/C3FF93FD-4E51-4F5A-94FD-C0D058A9A911/Walgreen\_AR\_07.pdf; Desjardins, D. Costco grows into pharmacy role - View from the Top'03. Drug Store News, Jan. 20, 2003. Duff, M. Using pharmacy to drive sales, traffic. Drug Store News, April 8, 2002.

(a) Director shall mean the Director of the Marin County Department of Health and Human Services or his or her designee.

(b) Person shall mean any individual person, firm, partnership, association, corporation, company, organization, or legal entity of any kind.

(c) Pharmacy shall mean a retail establishment in which the profession of pharmacy by a pharmacist licensed by the state of California in accordance with the Business and Professions Code is practiced and where prescriptions are offered for sale. A pharmacy may also offer other retail goods in addition to prescription pharmaceuticals.

(d) Tobacco product means:

(1) Any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, and snuff.

(2) Any electronic device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, electronic cigar, electronic pipe, or electronic hookah.

(3) Notwithstanding any provision of subsections (1) and (2) to the contrary, "tobacco product" includes any component, part, or accessory intended or reasonably expected to be used with a tobacco product, whether or not sold separately. "Tobacco product" does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.

(Ord. No. 3616, § I, 2014; Ord. No. 3698, § II, 2018)

No person shall sell tobacco products in a pharmacy.

(Ord. No. 3616, § I, 2014)

The director shall provide written notice to a pharmacy that the pharmacy is in violation of this chapter. Should the pharmacy fail to adhere to the requirements of this chapter within five days of such written notice, the county is authorized to seek a court injunction to compel the pharmacy to abide by the requirements of this chapter. The county shall be entitled to its costs and attorney fees for the pursuit of such injunction.

Additionally, the county may seek compliance with this chapter by any remedy allowed under the Marin County Code, including, but not limited to, revocation of tobacco license pursuant to Marin County Code Section 5.70.056 and the administrative fines pursuant to Marin County Code Section 5.70.058. In addition to the grounds for revocation contained in Marin County Code Section 5.70.056, failure to comply with Section 5.80.040 shall be independent grounds for revocation.

(Ord. No. 3616, § I, 2014)

Any permit to sell tobacco issued to a pharmacy pursuant to Marin County Code Sections 5.70.050 through 5.70.053 shall expire on September 30, 2014, and shall not be renewed if sales of tobacco by that pharmacy are prohibited under this chapter.

(Ord. No. 3616, § I, 2014)

The director may issue and amend rules, regulations, standards, guidelines, or conditions to implement and enforce this chapter.

(Ord. No. 3616, § I, 2014)

In adopting this chapter, the board of supervisors does not intend to regulate or affect the rights or authority of the state to do those things that are required, directed, or expressly authorized by federal or state law. Further, in adopting this chapter, the board of supervisors does not intend to prohibit that which is prohibited by federal or state law.

(Ord. No. 3616, § I, 2014)

In undertaking the adoption and enforcement of this chapter, the county is assuming an undertaking only to promote the general welfare. The county does not intend to impose the type of obligation that would allow a person to sue for money damages for an injury that the person claims to suffer as a result of a county officer or employee taking or failing to take an action with respect to any matter covered by this chapter.

(Ord. No. 3616, § I, 2014)