Philip Morris USA request stop in San Francisco's ban on tobacco sales by pharmacies..

October 24, 2008 - Philip Morris USA Inc. (PM) argued in a filing with U.S. District Judge Claudia Wilken on Thursday, October 23, 2008 that because the measure "handicaps" the company's advertising message ("suppress favorable messages about tobacco"), it violates the constitutional right of free speech. Judge Wilken will hold a hearing in Oakland on Nov. 6 on PM's request for a preliminary injunction that would stop the city law from being enforced.

The measure went into effect on Oct. 1 after Wilken on Sept. 26 turned down the Virginia-based company's bid for a temporary restraining order. The judge said Philip Morris filed its lawsuit very late - on Sept. 25 - and hadn't met the requirements for an immediate order. But Philip Morris continued its challenge with the request for a preliminary injunction, the next step in the case.

The ordinance bars pharmacies from selling tobacco, but makes an exception for supermarkets and so-called "big-box" stores such as Costco that contain pharmacies. It applies to about 60 pharmacies in the city, most of which are Walgreens drug stores. Walgreen Co. filed a separate challenge, based on a claim of discrimination, in San Francisco Superior Court, but on Sept. 30 a trial judge declined to grant a preliminary injunction in that case.

City lawyers have argued that the measure has nothing to do with free speech because it regulates conduct - cigarette sales - and not advertising.

Reference: Philip Morris argues against SF cigarette ban, San Francisco News, 10/24/2008.

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