Philip Morris USA Inc. argued in a filing with U.S. District Judge Claudia Wilken on Thursday that because the measure "handicaps" the company's advertising message, it violates the constitutional right of free speech.
Wilken will hold a hearing in Oakland on Nov. 6 on Philip Morris'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.
City lawyers have argued that the measure has nothing to do with free speech because it regulates conduct - cigarette sales - and not advertising.
But Philip Morris contends that the practical effect of the law is to put an end to its advertising and displays in the 60 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.
