Just before Thanksgiving, San Francisco lawmakers received a warning from NATO. The health-conscious city is considering raising the minimum age to buy tobacco to 21 — a fruitless effort, superseded by state law, wrote Thomas Briant, the executive director of the National Association of Tobacco Outlets (the NATO in question).
The state Attorney General's office is expected to weigh in on who can do what, but in the meantime, NATO warnings — coupled with a legal argument — have led Healdsburg in Sonoma County to abandon the effort to nix cigarettes for 18- to 20-year olds. But so far, San Francisco is ignoring NATO. Challenges to local laws are nothing new here — in fact, the city almost welcomes getting sued.
It's up to City Attorney Dennis Herrera to warn the mayor and the Board of Supervisors when legislation will land them in court — and it's up to Herrera's office to do the legal lifting in court, as it did when landlords sued to overturn new tenant-friendly eviction protections last year (the landlords won).
There's no official count on how many local laws have been challenged in court, overturned by a judge, or simply abandoned when they proved unenforceable — although the city's issuance of gay marriage licenses, the effort to force cell phone manufacturers to post warnings that phone radiation can cause brain cancer, and a ban on advertising soda on city property are an example of each, respectively. Despite those setbacks, local lawmakers have yet to appear shy.
“It's not uncommon that we defend San Francisco's policy innovations,” said Matt Dorsey, a spokesman for the City Attorney, who noted that it's most often “powerful interests” that fight San Francisco in court (and, when successful, collect attorneys' fees from San Francisco taxpayers).
Supervisor Eric Mar has several times run afoul of those interests, whether it was trying to restrict toys in McDonald's Happy Meals or restricting tobacco use and sales. And only a few times has the likelihood of a lawsuit steered Mar away from introducing a law likely to piss off litigious corporate types. It's worth paying out “hundreds of thousands of dollars in legal defense, if [the law] is the right thing to do,” he says.
As for NATO's warning? “We're very confident of the constitutionality of our ordinance,” Mar says. If the cigarette lobby disagrees, they can meet San Francisco in court — where the city's well-worked lawyers will very likely be already.