Within hours of losing its case before a federal trial judge, the nation's largest tobacco company began an appeal Friday on its challenge to the city of San Francisco's ban on tobacco sales by pharmacies.
Lawyers for Richmond, Va.-based Philip Morris USA Inc. filed a notice of appeal with the 9th U.S. Circuit Court of Appeals in San Francisco Friday afternoon.
The appeal followed an order earlier in the day which U.S. District Judge Claudia Wilken of Oakland turned down the company's bid for preliminary injunction against the city law.
The law, the first of its kind in the nation, went into effect on Oct. 1. It bans tobacco sales by pharmacies, but exempts supermarkets and so-called "big box" stores such as Costco that contain pharmacies.
Philip Morris's federal lawsuit claims the measure violates its right of free speech by curtailing its advertising and displays in the pharmacies.
Company spokesman Jack Marshall said, "Although it's called a ban on sales, the purpose and effect of the ordinance is to suppress communication directed to adult smokers in violation of our constitutional rights."
Wilken rejected that argument in Friday's eight-page ruling. She said the law regulates conduct - the sale of tobacco - and not advertising.
Wilken wrote, "Nothing in the ordinance restricts Philip Morris's ability to advertise its products in pharmacies."
Wilken had denied the request for an injunction in a ruling from the bench at a hearing last month, but said she would follow up with a written decision, which she issued Friday.
Deputy San Francisco City Attorney Vince Chhabria said he was disappointed Philip Morris is proceeding with an appeal.
"At a time San Francisco is facing a budget crisis, we should not have to spend our money fighting frivolous appeals," Chhabria contended.
The appeal before the 9th Circuit could take months to resolve.
A separate challenge to the law filed by Walgreen Co. is pending in the state court system.
The drugstore chain, which claims the law violates its right to equal treatment, lost its bid to a San Francisco Superior Court judge for a preliminary injunction.
Chhabria said the city has now filed a motion for dismissal of that lawsuit, which will be heard by Superior Court Judge Peter Busch on Dec. 19.
Walgreen Co. has also appealed the denial of a preliminary injunction to the state Court of Appeal, but Chhabria said the appeal has been put on hold until Busch rules on the request for dismissal.