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Clubbin' Camels: AG Suit Hits RJR for Rolling Stone spread
Poor ol' Joe Camel can't get a break.
Today, a total of eight busy-body attorneys general have filed lawsuits claimin' Reynold and Camel violated the Master's Settlement Agreement with a big ad campaign in Rollin' Stone magazine. It's all the usual suspects of California, Connecticut, Illinois, New York, Ohio, Maryland, Maine and Washington.
Y'all can read about it here, here, and here as well as about a zillion other places on the web.
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Camel ads coupled with illustrations promoting rock music in Rolling Stone magazine violated the tobacco industry's decade-old promise not to use cartoons to sell cigarettes to minors, a Philadelphia judge ruled Wednesday.
A spokesman for Pennsylvania Attorney General Tom Corbett said the ruling is a full victory over R.J. Reynolds Tobacco Co., and the first decision in lawsuits filed by attorneys general in nine states that ordered monetary damages.
An R.J. Reynolds spokesman said the Winston-Salem, N.C.-based company will appeal.
Judge William J. Manfredi ordered R.J. Reynolds Tobacco to pay $302,000 or run a full-page anti-smoking ad in a Rolling Stone edition that circulates in Pennsylvania.
In his decision, Manfredi said R.J. Reynolds violated its pledge not to pitch cigarettes to children because the Rolling Stone-produced and placed illustrations were cartoons and the cigarette maker should have avoided their placement next to a Camel ad. . . .
Suits in Connecticut, Illinois, Maryland and New York are still pending.
A Philadelphia judge has ruled that R.J. Reynolds Tobacco Co. violated the Master Settlement Agreement between big tobacco companies and 46 state attorneys general by publishing advertisements in Rolling Stone that contained cartoon imagery. (view ad)
Philadelphia Common Pleas Judge William J. Manfredi sanctioned R.J. Reynolds more than $300,000 for running the cartoon advertisements.
The judge ordered the tobacco company to run a full-page, antismoking and youth-oriented advertisement in Rolling Stone to be created in consultation with the U.S. Center for Disease Control's Division of Tobacco Prevention and Control and the state attorney general.
Once the corrective advertisement is published, the monetary sanction is to be purged, Manfredi ordered in Commonwealth v. Philip Morris Inc . Manfredi also ordered the company to pay counsel fees and prosecution costs to the state Attorney General's Office.
R.J. Reynolds Tobacco Co. said today that it has voluntarily halted promotions for a Camel marketing campaign aimed at adult listeners of independent rock music.
The decision comes a day after Reynolds was sued by nine state attorneys general over ads for Camel cigarettes that recently ran in Rolling Stone magazine.
The attorneys general of California, Connecticut, Illinois, Maine, Maryland, New York, Ohio, Pennsylvania and Washington accused Reynolds of violating the 1998 Master Settlement Agreement between 46 states and tobacco manufacturers because a nine-page pullout in the Nov. 15 issue sponsored by Reynolds contained cartoon images.
Other states are expected to file separate lawsuits. The company could face a fine exceeding $100 million for violating the cartoon ban, according to Tom Corbett, the attorney general for Pennsylvania.
[...]
Howard said that Reynolds sent a letter Tuesday to the tobacco-enforcement committee of the National Association of Attorneys General. The letter said that Reynolds would be willing to halt the Camel “The Farm” marketing. . . .
It all sounds like a lame attempt by corporate behemoths to crash the Pitchfork party, and assign aging and increasingly uncool brands some credibility with “the kids” by naming-checking a bunch of new bands and waving the “indie” slogan around in an embarrassing attempt to be a part of the next generation. With the “Indie Rock Universe”, Camel and Rolling Stone aren’t just co-conspirators, they’re after the same thing.
Continuing her tough stance to protect teens from the dangers of cigarette smoking, Illinois Attorney General Lisa Madigan today filed a motion against R.J. Reynolds Tobacco Co. (RJR) alleging that RJR is illegally marketing cigarettes to youth through a current advertising campaign.
Madigan's action, filed in the Circuit Court of Cook County , is a motion to hold RJR in contempt for violating the 1998 Tobacco Master Settlement Agreement (MSA). That agreement, which the tobacco industry signed to end the national tobacco litigation, expressly prohibits the use of cartoons to advertise or promote cigarettes.
The motion challenges RJR's publication of a nine-page advertisement in the Nov. 15 issue of Rolling Stone magazine. This advertisement uses cartoon characters to promote Camel cigarettes. Madigan's motion also challenges RJR's use of a cartoon-filled film advertisement at a November 21 concert that RJR sponsored at a Chicago nightclub.
In 1998, Santa Fe Natural Tobacco Company was one of many that agreed to a settlement, essentially removing its creative marketing arm.
The idea was to stop companies from distributing promotional materials often aimed at kids.
But Attorney General Richard Blumenthal said Santa Fe has been violating that agreement.
At issue - tin signs the company has been giving out featuring its "Natural American Spirit" cigarette brand.
“These promotional signs are both a symbol and a symptom of slick pitches that show the tobacco industry unrepentant, still relying on marketing tactics to sell death and addiction,” Blumenthal said. “This legal action demonstrates our undiminished determination to fight tobacco -- hopefully now a battle joined by a new president committed to public health.”
As a result, Connecticut is one of 41 states to reach a settlement with the company.
Santa Fe will stop handing out the signs and has also agreed to pay a $250 fine for each future violation. . . .
"This historic agreement bans slick signs and other pernicious promotions intended to make cigarettes seem cool," he said. "These merchants of death and disease depend on marketing to hook a new generation, enticing children and young adults with hip merchandise. Blocking distribution of signs, CDs, DVDS, clothing and other items hyping cigarettes is vital to reducing the appeal and incidence of smoking, especially among youth.”
Shell Oil Products U.S., a unit of Royal Dutch Shell Plc, agreed with the attorneys general of 46 states and the District of Columbia to help curb sales of tobacco products to minors at about 13,000 gas stations.
``By preventing a teen from smoking, we can protect the health of the next generation,'' Illinois Attorney General Lisa Madigan said today in a statement. Under the agreement, Shell will pay the states $100,000 for costs incurred in their probe.
Motiva Enterprises LLC, a Houston-based oil refiner with operations in the southeastern U.S., also is joining the accord . . .
Under the accord, retail stores located at the stations will be required to tell the oil company if tobacco products are being sold to people who are too young to legally buy them. Employees will receive training on the health risks faced by underage smokers, and Shell will conduct periodic spot checks to ensure compliance, said Brown.
The four states that didn't participate in the settlement were Indiana, North Carolina, North Dakota and Wisconsin.
ConocoPhillips, Exxon Mobil Corp., 7-Eleven Inc. and Walgreen Co. are among other retailers that have joined
Shell Oil Products and its parent, Motiva Enterprises, are taking proactive steps in Illinois to reduce cigarette sales to minors at 14,000 independent retail outlets in the state.
Illinois Attorney General Lisa Madigan said in a statement that Shell also agreed to pay $100,000 to cover costs incurred by the states’ investigation and negotiation.
To date, this marks the 12th agreement Madigan’s office signed with national retailers, including CVS, 7-Eleven, Wal-Mart and Walgreen’s stores, and gas stations and convenience stores operating under the Conoco, Phillips 66 or 76, Exxon, Mobil, BP and Amoco brand names, according to the statement. . . .
Madigan explained this agreement came as a result of an ongoing, multi-state enforcement effort. In total, the agreements cover more than 90,000 retail outlets across the nation.
The American Legacy Foundation(R) -- a national public health foundation dedicated to reducing tobacco use in the U.S. -- is proud to announce a new lecture series on tobacco policy and enforcement in honor of Vermont Attorney General William H. Sorrell. The series serves as an expression of gratitude for Sorrells six years of dedicated service and leadership on Legacys board of directors, and for his longtime work and commitment to reducing tobacco use in the U.S.
Through a $200,000 endowment to the National Association of Attorneys General (NAAG) Mission Foundation, the new William H. Sorrell Lecture Series on Tobacco Policy and Enforcement will include an annual lecture by a nationally recognized expert in tobacco policy or enforcement during one of NAAGs three annual meetings. Tobacco control is a core issue NAAG members are engaged in, and the lecture series will ensure NAAG members hear firsthand regarding innovative research, key policy initiatives, or other issues in tobacco control from leading experts in the public health field. . . .
On behalf of our President, Attorney General Patrick Lynch, the National Association of Attorneys General is truly honored and grateful for the generosity of the American Legacy Foundation and its support of the work of Attorneys General in enforcing the provisions of the 1998 Tobacco Master Settlement Agreement through the establishment of the William H. Sorrell Lecture series, NAAG Executive Director Jim McPherson said.
As the first gift of its kind in the history of our 100-year-old Association, this endowment will allow NAAG to continue to provide Attorneys General and their staffs with invaluable opportunities for intellectual debate, discussion and understanding of tobacco-related topics.
QUESTIONS PRESENTED
1. Whether the Federal Cigarette Labeling and Advertising Act expressly preempts state-law claims that a cigarette company violated the Maine Unfair Trade Practices Act by falsely representing its “light” cigarettes to the public when the predicate state-law duty of such claims is the duty not to deceive.
2. Whether such claims are impliedly preempted where the FTC has never exercised its rulemaking power to address the conduct at issue nor defined the terms at issue in this dispute. . . .
SUMMARY OF ARGUMENT
This case presents the questions whether the FCLAA or the actions of the FTC preempt state-law deception claims arising out of Petitioners’ practices with respect to “low tar and nicotine” and “light” cigarettes. Neither the FCLAA nor the actions of the FTC license Petitioners to deceive consumers in violation of state law. Immunizing Petitioners from the consequences of the alleged wrongful conduct is not a result that should be presumed without clear language and intent, neither of which is present here.
1. In Cipollone v. Liggett, 505 U.S. 504 (1992), the Court held that the FCLAA does not preempt claims resting upon false representation of a material fact or concealment of a material fact by tobacco companies where such claims are founded upon a general duty under state law not to deceive. The suit at issue here brings precisely such claims. It seeks economic, not personal injury, damages, under Maine’s general prohibition against any “material representation, omission, act or practice that is likely to mislead consumers acting reasonably under the circumstances.” Me. Rev. Stat. Ann. tit. 5, § 207 (Supp. 2007). Because the lawsuit before the Court is predicated upon a general statutory prohibition against deception (that the manufacturers made false statements and concealed information regarding “light” cigarettes), under Cipollone it is not preempted. To find otherwise would disrupt and do serious harm to the sovereigns’ complementary efforts to protect consumers, which would have adverse implications beyond the “light” cigarettes dispute before the Court here. State law suits pursuant to state unfair practices and consumer protection statutes combating deceptive practices are a critical complement to the administrative and prosecutorial efforts of the FTC. In fact, recognizing that it cannot combat consumer fraud on its own, FTC regulations direct the agency “to assist and cooperate” with state consumer protection efforts. One common outgrowth of that cooperation is that the FTC and the States often target the same wrongdoers, which sometimes results in separate settlements that provide different forms of relief. There is no exception in this complementary regulatory scheme for fraud or deception by cigarette manufacturers. Indeed, the FTC acknowledges the States’ vital part in prohibiting deception by tobacco companies.
2. Petitioners’ arguments that the FTC has somehow impliedly preempted the state-law claims are patently incorrect. Nothing in the text, structure, or regulatory history of the FTC Act or in the actions of the FTC relating to “light” cigarettes supports implied preemption. Petitioners are not claiming that the FTC Act itself imposes requirements on tobacco companies that conflict with state law. Nor could they, given that the FTC Act lacks an express preemption provision and instead contains a broad saving clause protecting state remedies and causes of action. In addition, Congress imposed heightened requirements for FTC rulemaking, and the FTC’s procedural rules require that it explain the impact of any of its rules on state law. And petitioners do not assert that the FTC has promulgated specific rules that preempt state-law actions with respect to “low tar” and “light” cigarettes. Rather, Petitioners’ implied preemption claim is based on their assertion that the FTC has blessed tobacco companies’ “light” cigarette advertisements through a history of less formal actions, such as consent decrees reached with individual companies. But neither the consent decrees nor the other actions relied upon by Petitioners mandated or approved Petitioners’ “light” and “low tar” advertisements. Moreover, in none of those actions did the FTC ever suggest that State consumer protection laws present an obstacle to, or are preempted by, some sort of FTC policy. Indeed, the FTC has eschewed any suggestion that its actions have resolved the issue of tobacco companies’ deceptive practices regarding “low tar” cigarettes. . . .
* * * The common purpose of the FTC Act and State unfair trade practices and consumer protection acts, such as Maine’s, is to protect consumers from deceptive practices. The FTC has been most sensitive to this relationship, as have the courts. Finding preemption here would run counter to how the FTC and the States have worked cooperatively together, and would do serious harm to that relationship and to the protections afforded consumers through their efforts. The particular claims of deception here fall squarely within those permitted under Cipollone, and the FTC has not established a cohesive policy impliedly preempting the States with respect to deceitful conduct by tobacco companies regarding “low tar” and “light” cigarettes. For these reasons, the Court should find that the state-law claims before it are not preempted.
Forty (40) Attorneys General, their staffs, federal and foreign officials, private industry chief executive officers and executives, trade groups and academics will convene to discuss a number of issues, including technology and crimefighting, rising energy and fuel costs and the environment, law enforcement challenges to protecting children, international cross-border issues, the digital television transition, constitutional law, tobacco, federal legislation and other legal issues.
So, there I was, waiting in line at the Sheetz store in Weston, West Virginia.
On the counter in front of me were about 50 of these little tins laid out on the counter.
They smell like mints.
They looked like mint containers.
And there was a sign next to them that said - free samples.
Young and old could take one.
And no one would object.
The cashier behind the counter looked like a teenager himself. . . .
The slip cover over the mint container says: Camel Snus Trial Offer.
In the container are little pouches of tobacco that you stick under you lip.
Camel Snus is a product of R.J. Reynolds.
And Reynolds is a party to the Master Settlement Agreement between the state Attorneys General and the tobacco companies.
That agreement includes a ban on free tobacco samples.
There is an exception to the ban on free samples, including "the conducting of consumer testing or evaluation of tobacco products with persons who certify that they are adults."
But that clearly wasn't going on at the Sheetz I was at.
The Camel Snus were on the counter. . . .
An attorney at the National Association of Attorneys General said that if Reynolds were giving Camel Snus to retailers as free samples to be handed out, "it would appear to violate the terms of the agreement."
And Eric Lindblom, director for policy research at Campaign for Tobacco Free Kids in Washington, D.C., said that it was clearly a violation of the agreement and did not fit within the consumer testing exception.
- Six U.S. states sued the maker of Camel cigarettes on Tuesday, charging that a promotion in an issue of Rolling Stone magazine violates a 1998 agreement not to use cartoons in its marketing efforts.
The suits focus on ads for the Camel brand, produced by R.J. Reynolds Tobacco Co., which appeared in a nine-page fold-out section in the November 15 issue of the music and popular culture magazine.
the November 15, 2007, issue of Rolling Stone magazine includes what appears to be a giant, nine-page ad for R.J. Reynolds’ Camel cigarettes that features a four-page cartoon foldout, despite a prohibition in the 1998 state tobacco settlement on the use of cartoons to market cigarettes. We urge state attorneys general to immediately investigate this ad as a possible violation of both the tobacco settlement’s prohibition on the use of cartoons and its prohibition on targeting youth in the marketing of tobacco products. It is difficult to see this nine-page spread as anything but an effort by R.J. Reynolds, aided and abetted by Rolling Stone, to push the legal limits and get around the tobacco settlement’s explicit ban on the use of cartoons to market cigarettes
Rolling Stone has told the media that the four-page cartoon foldout is “editorial content†produced by the magazine despite the fact it is surrounded by and indistinguishable from R.J. Reynolds’ Camel ad. This is a meaningless distinction to the magazine’s readers, including some 1.5 million youth, who will see the nine-page spread as one giant ad for Camel cigarettes (estimate on the number of youth readers, aged 12-17, comes from the magazine’s media kit. Rolling Stone may claim that the four-page cartoon spread is not part of the Camel ad that surrounds it, but the cartoon’s content, layout and placement make it appear to be an integral part of the ad. That can’t be an accident. Why would the spread begin and end with a Surgeon General’s warning if it wasn’t a cigarette ad?
The end result of this nine-page spread is exactly what the tobacco settlement sought to stop, which is the use of cartoon characters to market cigarettes.
http://tobaccofreekids.org/reports/camel/rollingstone_112007/
Law professor Richard Bonnie, who recently served as chair of the Institute of Medicine's Committee on Reducing Tobacco Use, testified before the House Subcommittee on Health on the bill HR1108, which would among other things give the United States Food and Drug Administration the authority to regulate tobacco products.
His testimony, delivered Oct. 3, was based on the Institute of Medicine report, "Ending the Tobacco Problem: A Blueprint for the Nation." The report outlined a plan for the federal and state governments to reduce tobacco use to the point that it is no longer a significant health problem in the United States.
"Our report was not only about federal legislation and the FDA. It had a much broader scope, and a lot of the recommendations were directed to the states and private insurers," Bonnie said. "A key component of the blueprint for the nation, as we described it, is for the federal government to get off the sidelines. We need to change the regulatory landscape of tobacco control, and an important part of doing that is giving the FDA jurisdiction to regulate tobacco products." . . .
Bonnie also gave the keynote address to the Conference on Tobacco sponsored by the National Association of Attorneys General, held Oct. 15 in Seattle.