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By Published on .

The Point-of-Purchase Advertising Institute failed to get a federal judge in Greensboro, N.C., to set aside his May decision that could cost the industry $250 million a year in tobacco marketing revenues.

U.S. District Court Judge William Osteen rejected without comment POPAI's request to let it argue whether a Food & Drug Administration ban on self-service displays of cigarette packages represents a ban on "advertising" rather than a ban on product "access."

In his April 25 ruling on challenges by tobacco companies and advertising groups to the FDA's tobacco ad restrictions, the judge gave ad groups a major victory by saying the FDA had no authority for its attempt to restrict advertising of tobacco products.

However, in footnotes to his opinion, Judge Osteen drew a new distinction for what constitutes access restrictions-which he said the FDA has authority to implement-by listing self-service displays of tobacco packs.

While the ruling is being appealed, POPAI had gone back to Judge Osteen seeking further arguments on self-service displays, saying the judge's distinction between advertising and access restrictions had never been mentioned in legal briefs or in oral arguments and that self-service displays are advertising.

POPAI President Richard Blatt last week said the ruling was expected.

"We are disappointed, but not surprised, and look to the appellate level for defining our industry," he said.

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