Ban on cigarette sales in B.C. pharmacies opposed by retailers

A number of major chain stores are attempting to stop a proposal to prohibit the sale of tobacco products in B.C. pharmacies.

Suzanne Solven, speaking for the College of Pharmacists of British Columbia, says her organization is looking at banning the sale of cigarettes where pharmacists work.

"The board is looking at, potentially, having bylaws that prohibit pharmacies being licensed in premises where tobacco is sold," she said.

Solven said there are no proposed bylaws in the works yet, so the college was surprised in June when the heads of a number of chain retail stores — including Rexall, Sobeys, Safeway, Thrifty Foods, Overwaitea and London Drugs — signed a letter opposing any ban.

An executive with London Drugs said the company makes almost no profit from cigarettes and would be happy to see them disappear from its shelves, but the concern is that the college could be overstepping its authority.

"We're very concerned that a group of unelected people could start to create agendas of what could be sold," said Clint Mahlman, executive vice president and and COO of London Drugs.

"Salty snacks, sweets, sugary beverages, which would be equally-evidenced that there's health impacts to those."

However, Scott McDonald, president of the B.C. Lung Association, says smoking is a distinct health threat unlike many others.

"I think tobacco is in a class by itself in terms of how well and universally it's recognized as a threat to our health," he said.

"Chocolate bars, soft drinks, other products aren't quite as distinct symbolically as tobacco is."

B.C. is the only province where you can still buy tobacco products in the same shop as a pharmacy. Across Canada, many provincial governments introduced a ban on mixing the two.

B.C.'s health minister was not available to comment, but the ministry issued a statement saying, "We are not aware of any studies showing that removing tobacco from pharmacies reduces smoking rates."

Letter sent to College of Pharmacists of B.C.

JUNE 19, 2014

Confidential

College of Pharmacists of B.C 200-1765 West 8th Ave

Vancouver, B.C. V6J 5C6

Attention: ______

Dear ______,

Re Proposed Bylaw

We write to you as leading retailers who include pharmacy services within our store operations in British Columbia. We understand that the British Columbia College of Pharmacists (the "College") is proposing to enact a bylaw, either under the provisions of the Health Professions Act or of the Pharmacy Operations and Drug Scheduling Act, which will purport to prevent the issuance of a pharmacy licence to any pharmacy operator if tobacco products are sold on the premises where the pharmacy is located.

We wish to record our strong objections to the apparent basis of, and rationale for, the proposed bylaw. While we recognize the status and authority of the College and have no concern with the College regulating those matters which fall within its objects and powers, we believe, based on legal advice, that the proposed bylaw falls well outside of the jurisdiction of the College and that its enactment will, accordingly, be open to legitimate challenge on that basis.

In our legal analysis we have considered specifically the objects and powers of the College as set out in the Health Professions Act, including the bylaw making powers contained in that act and in the Pharmacy Operations and Drug Scheduling Act, and we see no basis for the College to assert authority over this matter, either on the specific wording of the bylaw making powers or on the basis that the proposed bylaw is in some way necessarily incidental to those powers. In particular, the definition of a "pharmacy" set out in the Pharmacy Operations and Drug Scheduling Act makes it very clear that it is only those portions of retail premises in which drugs or devices are stored, dispensed or sold to the public that are subject to the jurisdiction of the College. In this regard we point out that pharmacists do not sell tobacco or tobacco products in British Columbia, that such products are not sold in "pharmacies" as defined in that act and that smoking cessation devices may only be sold in "pharmacies."

The suggestion that the College has the authority to regulate or prohibit the sale of any product which is legally sold in this Province in full compliance with applicable specific legislation (in this case the Tobacco Control Act) is untenable. The College, no matter what its intentions, cannot appropriate to itself the role of the elected government to regulate the perfectly legal activities of retailers merely because pharmacists carry out the "practice of pharmacy" (as defined in the regulations to the Health Professions Act) in retail settings which also offer for sale to the public products over which the College has no regulatory oversight. In attempting to do so the College is, in our view, seeking to set a precedent with wide ramifications for the retail industry. As retailers we all sell an extensive variety of goods and products and, except as may be specifically provided by bylaws passed by the College in accordance with its statutory powers, the College is not in a position to serve as arbitrator of what may and may not be sold in British Columbia by retailers whose offerings range from groceries to apparel to consumer electronics. The approach of the College suggests that the College believes that it has the power to regulate any goods or products which we might sell in our stores simply because of pharmacy operations are conducted in those stores, and this is quite simply not the case. If it were then the College could claim the authority to regulate the sale of, for example video games, snack foods or lottery tickets by retail operations which include pharmacies, on the basis of factors which are wholly outside of its mandate.

We suggest that the members of the board of the College will wish to carefully consider this matter, and, in particular, their individual duties and the personal responsibility which they may incur by recommending and purporting to pass a by-law which is clearly beyond the authority of the College and accordingly may be considered not to be passed in good faith. In addition, we note that the law does not take a positive view of activities which represent unwarranted restraint of trade.

You should also appreciate that the implementation of a bylaw which, without proper underlying authority, purports to prevent the sale of any product which may be sold under laws currently in effect in British Columbia will result in associated loss to retailers and we will look to the College, and to its board members personally, for recourse for such loss.

We would welcome the opportunity for our representatives to discuss this matter more thoroughly with the College but in the interim we urge the College to refrain from taking immediate and inappropriate action on this matter.

Yours truly,

Clint Mahlman

Michael Lund

Darryl Jones

Executive Vice President &COO

Senior Vice President

President

London Drugs Limited

Drug Trading and Medicine Shoppe

Overwaitea Food Group

McKesson Canada

Frank Scorpiniti

Chuck Mulvenna

Jim Dores

Chief Executive Officer

President, Safeway Operations

General Manager

Rexall

Sobeys Inc.

Thrifty Foods Canada

Statement from B.C. Ministry of Health, Oct. 16

We believe it is important to provide meaningful steps to prevent British Columbians from starting smoking and helping those who want to quit do so – as opposed to symbolic gestures. Our tobacco programs in B.C. rely on evidence-based information. We are not aware of any studies showing that removing tobacco from pharmacies reduces smoking rates. Currently, B.C. enjoys the lowest smoking rate in the country, at 16.2 per cent.

Because of legislation in B.C., tobacco displays and promotions are not allowed in stores where youth have access – so a store that contains a pharmacy will not see tobacco products on display. In addition to a number of pharmacies in B.C. taking steps to stop selling tobacco, we are also seeing pharmacists, as medical professionals, becoming more active in providing advice on tobacco cessation. This includes pharmacies located in grocery stores, warehouses, and larger department-like stores.

In fact, the QuitNow.ca website has videos available that show how pharmacists can help smokers best quit smoking. We are pleased to see many pharmacists helping customers by providing advice on tobacco cessation – many of those who receive medications through the BC Smoking Cessation Program pick up their products from their pharmacy.

The fact is pharmacies are the only retail environment with knowledgeable cessation experts on site and the only retail site where nicotine replacement therapies are sold.

The Clean Air Coalition has put out a document that says most pharmacies in BC don’t sell tobacco (55 per cent do not) - http://www.cleanaircoalitionbc.com/uploads/2012/01/120116-Backgrounder-Tobacco-Free-Pharmacies-FINAL.pdf - and has provided a voluntary listing at http://www.cleanaircoalitionbc.com/issues/tobacco-free-pharmacies/pharmacies-and-stores-that-contain-a-pharmacy-in-bc-that-do-not-sell-tobacco-products