Federal Judge Denies Bid To Stop San Francisco Pharmacy Tobacco Ban..

November 7, 2008 - U.S. District Court Judge Claudia Wilken on Thursday, November 6, 2008 denied a motion by Philip Morris USA Inc. (PM) for a preliminary injunction that would have put on hold the city of San Francisco's ban on tobacco sales by pharmacies until the cigarette company's lawsuit against the city is resolved.

Judge Wilken said the ban doesn't impinge on the company's free speech rights because it can still advertise at drug stores. However, Wilken admitted, "Maybe it's not as interesting to advertise where you can't sell. Wilken said she thinks the PM's free speech argument is weak because "cigarettes aren't a method of communication like a book." And Wilken said she doesn't think the law violates PM's First Amendment rights because "the regulation is that you can't sell cigarettes, not that you can't advertise cigarettes."

The ordinance is the first of its kind in the nation. It was approved by the San Francisco Board of Supervisors in July, signed by Mayor Gavin Newsom in August and went into effect Oct. 1.

PM argued in court filings that the city's regulation violates the First Amendment because it effectively forces tobacco companies to pull the advertising that accompanies its products in drug stores. PM's attorney, Daniel Collins, complained that advertising cigarettes at stores where they can't be sold is "not a practical solution for retail." Collins said the ban on sales "has an undeniable effect" on the company's revenues.

San Francisco Deputy City Attorney Vince Chhabria said that if governments can be prevented from regulating products by equating products with advertising then they would be able to ban anything.

Wilken then denied the company's motion and set a case management conference for January 6, 2009.

After the hearing Collins declined to comment on whether PM will appeal Wilken's ruling. Jack Marshall, a spokesman for the PM, said by phone, "We will wait for the court's written ruling and will examine our legal options at that time and in due course."

Chhabria said he expects that PM will file an appeal with the Ninth Circuit Court of Appeal in San Francisco because "I'm not sure what else there is to fight about here" in Wilken's courtroom. Chhabria said if PM doesn't file an appeal, the city will file a motion for judgment that would ask Wilken to dismiss the company's lawsuit, which was filed on Sept. 24, shortly before the ban went into effect.

Reference: Judge Denies Bid To Stop SF Pharmacy Tobacco Ban, CBS5.com, 11/6/2008.

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