Wednesday, June 30, 2010
C.A.: Advertisement Violated 1998 Tobacco Settlement
By STEVEN M. ELLIS, Staff Writer
The Fourth District Court of Appeal ruled yesterday that an advertisement depicting flying radios with helicopter rotors, jet-propelled tractors and televisions growing from the ground on plant stalks violated a 1998 settlement barring the use of cartoons in cigarette advertising.
Div. One said R.J. Reynolds Tobacco Company violated the settlement when it ran the four-page advertisement in Rolling Stone Magazine in 2007 to promote the company’s “Camel Farm” campaign to sell cigarettes to fans of rock musicians on independent record labels.
San Diego Superior Court Judge Ronald S. Prager ruled in 2009 that the images violated the settlement’s ban on depicting “objects” with “unnatural” abilities. However, he declined to order injunctive or declaratory relief, noting that the company terminated the campaign shortly after the ad ran and took subsequent steps to prevent future ads from appearing near cartoons.
Reynolds and the nation’s other largest tobacco companies entered into the settlement agreement with 46 states and the District of Columbia to resolve claims against the companies relating to public health and the marketing of tobacco products to minors.
The settlement prohibited the use of “cartoons” in the advertising, promoting, packaging or labeling of tobacco products. It defined the term to include “any drawing or other depiction of an object, person, animal, creature or any similar caricature…[involving]…the use of comically exaggerated features;…the attribution of human characteristics to animals, plants or other objects, or the similar use of anthropomorphic technique; or…the attribution of unnatural or extrahuman abilities, such as imperviousness to pain or injury, X-ray vision, tunneling at very high speeds or transformation.”
California Attorney General Jerry Brown, along with other states’ attorneys general, filed suit after the ad ran in Rolling Stone, arguing that it violated the settlement. Prager agreed, although he rejected the contention that Reynolds was responsible for placing the ad so that it bookended five pages of editorial content accompanied by hand-drawn illustrations.
Reynolds appealed, but Presiding Justice Judith McConnell rebuffed the company’s argument that the settlement’s definition of “cartoon” was ambiguous.
The company contended that the term “unnatural…abilities” was modified by the examples of “super-hero-like powers” that followed it, and asserted that the settlement should be interpreted to cover only such powers “that are particularly appealing to children, rather than merely unusual or surrealist depictions.”
McConnell, however, wrote that adopting Reynolds’ interpretation would defeat the purpose of including the term “object” insofar as no object can demonstrate the human attributes such as “courage and principle” denoted by the word “hero.”
Opining that Prager’s determination that the ad was a cartoon was correct, she also pointed to an opinion by a Washington court involving similar litigation, State of Washington v. R.J. Reynolds Tobacco Co. (Wash.App. 2009) 211 P.3d 448, quoting:
“[I]t is plain that one focus of the [settlement] is to prohibit the marketing of tobacco products by the use of unnatural images. The Camel Farm imagery depends entirely upon suspension of the laws of nature. Under a blue sky in a pastoral Eden, roosters hitch rides on floating tractors, speakers grow out of the ground, and radios fly. This is in a world where the natural laws do not obtain, where cancer and serious health problems can cease to exist. For a product known to cause both, such a world is a potent sales device.”
In a separate portion of the opinion, McConnell also rejected Reynolds’ claim that Prager committed reversible error in concluding that he had discretion under the settlement to assess monetary sanctions against the company for using cartoons. Pointing out that Prager opted not to impose such sanctions, she said the issue was moot.
Justices Richard D. Huffman and James A. McIntyre joined McConnell in her opinion.
The case is In re Tobacco Cases I, 10 S.O.S. 3563.
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