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