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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