October 10, 2008 4:13 PM

Munger Reps Philip Morris in Unprecedented Tobacco Sales Ban Case

Posted by Zach Lowe

In 2001 the U.S. Supreme Court upheld the right of tobacco companies to advertise in stores over the objections of Massachusetts officials. Now the city of San Francisco is trying a different tactic to curb cigarette sales: banning them altogether. A law that went into effect on Oct. 1 prohibits the sale of all tobacco products in drug stores, including retail chains like Rite Aid that also house pharmacies.

Philip Morris is challenging the case, and they've turned to longtime counsel Munger, Tolles & Olson to come up with a novel argument against the San Francisco law. The lawyers are claiming that the regulation violates the First Amendment because it effectively forces tobacco companies to pull the advertising that accompanies its products in drug stores. Munger lawyers cited the 2001 case, Lorillard Tobacco v. Reilly, a matter argued in part by a team at Latham & Watkins.

The law, says Philip Morris, "will take away what have proved to be some of the most convenient and effective venues for reaching adult smokers," according to the company's court filings.

City officials tried to tear down that argument in court papers filed Friday in the U.S. district court in Oakland, according to the San Francisco Chronicle. The city claims the tobacco companies would be free to keep advertising in drug stores even if their products wouldn't actually be inside those stores.

Lawyers on the Munger team led by partner Daniel Collins did not return calls seeking comment.

Munger has represented Philip Morris in several high-profile cases in California and nationwide, including cases about whether tobacco companies intentionally aimed misleading ads at teenagers and whether some tort claims were time-barred by statutes of limitations.

Interestingly, the San Francisco law exempts supermarkets and big-box retail stores, drawing claims of discrimination from drug stores.

Judge Claudia Wilken has scheduled an Oct. 30 hearing to decide whether to put the law on hold until the lawsuit is resolved, the Chronicle says.

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