Judge refuses to block ban on tobacco sales


U.S. District Judge Claudia Wilken of Oakland late today turned down a request by Philip Morris USA Inc. for a temporary restraining order that would have blocked the measure from going into effect Oct. 1 as scheduled.

The ordinance was enacted by the city's board of supervisors in August.

The Richmond, Va.-based company argued in a federal lawsuit filed Wednesday that the sales ban will violate its right of free speech by putting an end to cigarette advertising and displays in the pharmacy stores.

City lawyers hadn't yet responded to the lawsuit and were planning to file opposition to a temporary restraining order on Monday.

But Wilken said in a two-page order that even without the city's opposition, Philip Morris's own papers hadn't shown the combination of likelihood of legal success and danger of irreparable harm needed for a temporary restraining order.

Wilken wrote that Philip Morris's "unexplained delay in filing its application for a temporary restraining order until days before the enforcement of the ordinance belies its claim of irreparable harm."

Wilken scheduled a hearing on whether to grant a preliminary injunction, the next step in the case, on Oct. 30, and ordered both sides to file further briefs before then.

Deputy City Attorney Vince Chhabria said, "The fact that the judge denied the temporary restraining order request without even receiving our opposition underscores the weakness of the argument that Philip Morris has a First Amendment right to sell cigarettes."

Philip Morris spokesman Jack Marshall said, "While disappointed with the court's initial ruling, Philip Morris USA looks forward to presenting its arguments at the hearing on our motion for a preliminary injunction."

It is still possible the measure could be blocked from going into effect Oct. 1 since another judge in a different court will hold a hearing on Monday on a separate lawsuit filed by Walgreen Co.

Walgreen Co. claimed in a San Francisco Superior Court lawsuit filed Sept. 8 that the measure violates its right to equal treatment because grocery stores and so-called "big box" stores containing pharmacies are exempted from the ban.

Superior Court Judge Peter Busch will consider Walgreen Co.'s request for a preliminary injunction at the hearing on Monday.

The rationale for the ordinance, according to findings by the board of supervisors, is that pharmacies are "trusted sources of health information" and their sales of tobacco convey "tacit approval" of the products.

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