Entirely Supported By Tax-Deductible Contributions
Entirely Supported By Tax-Deductible Contributions
TO THE FEDERAL TRADE COMMISSION (FTC)
ASKING THE AGENCY TO ISSUE A RULE TO PROHIBIT THE USE
OF CARTOON CHARACTERS IN ADS FOR ANY TOBACCO PRODUCT
FEDERAL TRADE COMMISSION
6th Street & Pennsylvania Ave. NW
Washington, D.C. 20580
In the Matter of the ]
Use of Cartoon Characters ]
in Advertising for Cigarettes ]
and Other Tobacco Products ]
Petition for Rulemaking to Prohibit the Use of Cartoon Characters
in the Advertising and Promotion of Cigarettes and Other Tobacco Products
as an Unfair and Deceptive Trade Practice
ABSTRACT
For the reasons set forth hereinafter, the use of cartoon
characters should be prohibited in the advertising and promotion of
cigarettes and other tobacco products which are increasingly used
by children, including smokeless tobacco and cigars.
Although RJR has now agreed to discontinue the use of "Joe
Camel" in its tobacco advertising, this sorry spectacle -- which
the FTC has already permitted to continue far too long --
demonstrates just how effective cartoon characters are in enticing
young children into becoming nicotine addicts.
Moreover, this decision will not prevent RJR or any other
tobacco company from utilizing similar or even more effective
cartoon characters in the future to provide a special appeal and
attract the attention of young children -- as they have done in the
past (with "Fred Flintstone", and just recently experimented with
doing (updating "Willy the Penguin" as a 90's representative for
Kool). The clearest evidence that cartoon characters appeal to
children is their very widespread use in ads for toys, cereals, and
other products clearly aimed at youngsters. The clearest evidence
that cartoon characters in tobacco ads can likewise appeal to
children is found regarding Joe Camel.
The evidence the FTC has amassed showing that the use of Joe
Camel is an unfair and deceptive trade practice is obviously not
restricted to one specific character. Rather much the same
evidence can and should be used to demonstrate that other cartoon
characters carefully drawn to appeal to young people by appearing
"hip," "with it," etc. can have exactly the same effect.
In their proposed "settlement," the tobacco companies have
demonstrated that they can live without using cartoons in ads.
Also, by using cartoon characters as a named factor which should be
used to determine whether restaurants "cater[] largely to minors,"
they admit the natural attraction of kids to cartoon characters.
The advantages of proceeding via a rulemaking process are that
it can result in a rule which applies across the board and is fair
to all companies, and that it avoids some of the procedural
problems inherent in proceeding on a case-by-case basis (including
delay) as some new cartoon character is chosen to shill for a
cigarette or other tobacco product. ASH respectfully submits that
it is just as wrong to use Fred Flintstone, Bugs Bunny, Barnie the
Dinosaur, Willy the Penguin, Tinker Bell, and other cartoon
characters yet to be created to push cigarettes as it is use Joe
Camel.
PETITION FOR RULEMAKING
Action on Smoking and Health (ASH) hereby petitions the
Federal Trade Commission to commence rulemaking proceedings under
the Federal Trade Commission Act (15 U.S.C. 57a(b)) and 16 CFR
1.7 et seq. to formulate rules which will define cigarette and
other tobacco advertising by means of cartoon drawings or cartoon
characters as unfair or deceptive practices in or affecting
commerce which are prevalent in the United States.
RELIEF REQUESTED
ASH submits this petition under 16 CFR 1.9 as an "interested
person" who is concerned that cartoon advertisements for cigarettes
and other tobacco products are prevalent throughout the United
States in interstate commerce and that they constitute unfair and
deceptive acts and practices in that, while suggesting that they
are harmless because of their child-pleasing associations, they --
1. unduly and unnecessarily stimulate the interest of minors
and other young persons in such products;
2. suggest that tobacco products are a proper source of
amusement for the young;
3. encourage disregard and disrespect by minors of state and
local antismoking laws on the assumption that anything sponsored by
a cartoon must be harmless;
4. familiarize the young with drug culture attitudes which in
many cases may be carried from tobacco (recognized as a "gateway
drug") to marijuana, cocaine and heroin;
5. give no indication that use of the products may give rise
to addiction; and
6. reinforce the strength of the advertising message by
appearing on a wide range of promotional products attractive to
minors and young persons including baseball caps, T-shirts and
jackets.
It is respectfully submitted that the material contained
herein constitutes information which ASH wishes to make available
to the Commission to indicate "a widespread pattern of unfair or
deceptive acts or practices" within the meaning of 15 USC
57a(b)(3)(A). While the great bulk of the information relates to
Joe Camel, it demonstrates how unfairly and deceptively effective
any cartoon character used in a tobacco ad is likely to be.
For these and other reasons set forth herein, ASH requests the
Federal Trade Commission to commence rulemaking proceedings
pursuant to 15 U.S.C. 57a(b) banning the use of cartoons in the
advertising of cigarettes and other tobacco products.
INTRODUCTION
For the reasons set forth hereinafter, the use of cartoon
characters should be prohibited in the advertising and promotion of
cigarettes and other tobacco products which are increasingly used
by children, including smokeless tobacco and cigars.
Although RJR has now agreed to discontinue the use of "Joe
Camel" in its tobacco advertising, this sorry spectacle -- which
the FTC has already permitted to continue far too long --
demonstrates just how effective cartoon characters are in enticing
young children into becoming nicotine addicts.
Moreover, this decision will not prevent RJR or any other
tobacco company from utilizing similar or even more effective
cartoon characters in the future to provide a special appeal and
attract the attention of young children.
They have done this in the past with the cartoon character
"Fred Flintstone" who is so well known and beloved by children that
vitamins in the same of Fred and his friends are marketed
especially for children.
It was also done just recently when Brown and Williamson (B&W)
experimented with updating its cartoon Willy the Penguin to give
him a 90's image especially appealing to children, apparently as
part of an attempt to complete with the appeal among children of
Joe Camel. In the words of the trade publication Advertising Age
[Dec. 23-30, 1991:
[B&W] with zero compunction and zero integrity, tested a
new Kool cigarettes character: a cartoon penguin with a
Teenage Mutant Ninja Turtle attitude. Accusations of
appealing to children were inevitable, but the tobacco
company felt it had no choice. For one, Kool's share was
sliding. And, No. 2, Mr. Rogers wasn't available,"
The clearest evidence that cartoon characters appeal to
children is their very widespread use in ads for toys, cereals, and
other products clearly aimed at youngsters. As Jean Kilbourne, a
Boston-area based advertising critic who lectures internationally
noted:
If you want to know what appeals to children, look at ads
that are aimed deliberately at children. What do they
use? They use cartoon characters. They use animals. [The
Bergan Record, May 15, 1992]
Similarly, the clearest evidence that cartoon characters in
tobacco ads can likewise appeal to children is found regarding Joe
Camel.
The evidence the FTC has amassed showing that the use of Joe
Camel is an unfair and deceptive trade practice is obviously not
restricted to one specific character. Rather much the same
evidence can and should be used to demonstrate that other cartoon
characters carefully drawn to appeal to young people by appearing
"hip," "with it," etc. can have exactly the same effect.
In their proposed "settlement," the tobacco companies have
demonstrated that they can live without using cartoons in ads.
Also, by using cartoon characters as a named factor which should be
used to determine whether restaurants "cater[] largely to minors,"
they admit the natural attraction of kids to cartoon characters.
The advantages of proceeding via a rulemaking process are that
it can result in a rule which applies across the board and is fair
to all companies, and that it avoids some of the procedural
problems inherent in proceeding on a case-by-case basis. This
includes the inherent delay which would occur were a new cartoon
character to be introduced as the FTC staff investigates, assembles
the evidence, and makes the decision to proceed, as well as the
delay inherent in any adjudicatory proceeding in which various Due
Process protections must be afforded to the individual respondent.
ASH respectfully submits that it is just as wrong to use Fred
Flintstone, Bugs Bunny, Barnie the Dinosaur, Willy the Penguin,
Tinker Bell, and other cartoon characters yet to be created to push
cigarettes as it was to use Joe Camel. The FTC should finish the
job it belatedly started, not quit and let the same problem simply
spring up again to addict millions of additional children.
INTERESTS OF ACTION ON SMOKING AND HEALTH (ASH)
Petitioner Action on Smoking and Health is a national non-
profit scientific and educational organization focusing on the
problems of smoking, and protecting the right of non-smokers to
breathe free of other persons' tobacco smoke. The U.S. Court of
Appeals for the District of Columbia Circuit recently held that ASH
has standing to seek judicial review of actions related to smoking;
see, e.g, Action on Smoking and Health v. Dept. of Labor, 100 F.3d
991 (D.C. Cir. 1996).
ASH's Executive Director, law professor John F. Banzhaf III,
has brought and participated in many legal actions related to
smoking on behalf of ASH and in his individual capacity, just as he
has participated in proceedings before this agency involving
advertising for products other than cigarettes, see, e.g., Campbell
Soup Co., 77 F.T.C. 664 (1970) (establishing "corrective
advertising" and consumer participation in consent decree
proceeding); Firestone Tire & Rubber Co., 81 F.T.C. 398 (1971)
(consumer participation in adjudicative proceedings, and
compensation of expenses therefore). Some of the major proceeding
involving smoking include:
þ Banzhaf v. FCC, 405 F.2d 1082 (D.C. Cir. 1968) upholding
FCC ruling that television and radio stations must provide
substantial free time for anti-smoking messages;
þ Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (DC
1971), aff'd 405 U.S. 1000 (1972) upholding the constitutionality
of the statute banning cigarette commercials;
þ ASH v. CAB, 699 F.2d 1209 (D.C. Cir. 1983) requiring former
Civil Aeronautics Board (CAB) to adopt reasonable regulations for
non-smoking sections on airplanes; following the "sunset" of the
CAB Congress expanded the ban on smoking on almost all domestic
flights;
þ ASH v. Lujan, Civ. Aer. No. 91-0357 JGP (D.D.C. 1991)
forcing U.S. Park Service to discontinue permitting cigarette
promotions in U.S. park, and action settled accordingly;
þ Shimp v. New Jersey Bell Telephone Company, 368 A.2d 408
(1976) first injunction ever obtained against smoking in a
workplace;
þ Pletten v. Department of the Army, U.S. Merit Systems
Protection Board Nos. CH0 7528010099, CHO 1520 2901 (1981)
establishing principle that persons sensitive to tobacco smoke are
protected as "handicapped persons".
ASH has also pioneered or been deeply involved in a large
variety of legal actions and other projects designed to protect
children from exposure to environmental tobacco smoke (ETS) both in
the home and in other surroundings and to prevent minors from
smoking and from becoming addicted to nicotine. Examples of ASH
activity include:
þ Nocera v. Nocera No. B 89-2922 DM (Cir. Ct. Kalamazoo 1991)
a custody case in which an ASH brief helped to secure one of the
first court orders that the minor children of the parties should
not be exposed to cigarette smoke when in the custody of a smoking
parent (the mother in that case). This case has been followed by
numerous others in which ASH has assisted attorneys and nonsmoking
parents to secure smoking prohibitions in custody orders. ASH has
also urged medical officers and others to report exposure of
children to ETS as child abuse, if such a finding is in accordance
with state law, in cases where the child concerned suffers from a
severe case of asthma, bronchitis, allergies or other serious
pulmonary or respiratory impairment and the smoking parent has
disregarded all medical and legal requests to protect the child
from exposure to ETS while in his or her custody.
þ ASH promoted the introduction of smoking bans in fast-food
restaurants by writing to C.E.O.s of the main nationwide chains,
pointing out that since many features of their service were
designed to attract children as customers, they had a special
responsibility to them. In view, therefore, of the now well-known
health hazards presented to children exposed to ETS, restaurants
might be held legally liable for luring children into premises
where they were not protected. Subsequent to ASH's action, smoking
bans were introduced by McDonald's, Arby's, Chuck E Cheese, and
Dairy Queen. The Chain Restaurant Association, a trade
organization, also approved the introduction of smoking bans.
þ ASH strongly favors and defends municipal and other bans on
the sale of cigarettes from vending machines because studies show
that many young children obtain their cigarettes from such
machines. ASH has accordingly participated in a number of
proceedings (where vending machine bans have been challenged) often
by filing amicus curiae briefs or providing legal research and
information as in the case of the East Brunswick (N.J.) and New
York City (N.Y.) municipal ordinances.
þ ASH played a major role in persuading President Clinton to
support the Food and Drug Administration's proposal to regulate
cigarettes. This decision is itself based upon a legal principle
ASH established in the case of Action on Smoking and Health v.
Harris, 655 F.2d 236 (D.C. Cir. 1980); moreover, the tobacco
industry's pending complaint against the FDA charges that ASH's
"threats," "pressure," and "a carefully orchestrated public
relations campaign" were behind the agency's action. ASH also
organized a letter writing competition for children, aged 4 - 16,
in which over 35,000 children asked President Clinton to support
the FDA proposals because they are intended to protect children; a
project which earned ASH special recognition as a White House
ceremony.
Because of its long-time involvement in smoking and health
issues, as well as its concerns with the protection of children
both from ETS and from acquiring tobacco addiction, ASH files this
petition on behalf of itself, and on behalf of its tens of
thousands of contributors who are adversely affected by cigarettes,
cigarette smoke, cigarette advertising, and children becoming
addicted to smoking.
BACKGROUND
Few examples of the power of advertising to transform market
appeal surpass that of R. J. Reynoldsþs promotion of Camel
cigarettes by use of the cartoon character þJoe Camel."
Camel cigarettes were first introduced in 1913 by R. J.
Reynolds (RJR) and their advertising approach was to adult males
with such themes as þCamel. Where a man belongs,þ and þIþd walk a
mile for a Camel.þ Advertisements and packs displayed a
naturalistic drawing of a dromedary in front of palm trees and a
pyramid.
In 1988 RJR embarked on a multimedia advertising campaign
which introduced the anthropomorphic cartoon camel þJoe Camel.þ
The cartoon camel was placed in a variety of enjoyable situations
likely to attract the interest of adolescents and younger children
(such as bike riding, swimming, making music, playing a jukebox)
and, by association, depicting smoking as an amusing, glamorous and
þcoolþ activity, or in a sophisticated and romantic light (See
Appendix; Exhibits 1 and 2). All the advertisements appeared and
continue to appear in countless magazines, newspapers and
promotional mailings throughout the country.
The use of the single Joe Camel cartoon character was followed
by the introduction of a þsocial circleþ for Joe Camel consisting
of male and female anthropomorphic cartoon camel characters in
lively or glamorous settings (see Appendix, Exhibits 3 and 4).
In addition, RJR turned the cartoon camel into a promotional
bonanza by publishing catalogues which encourage smokers to
purchase Camels by luring them with an array of free items desired
by children and adolescents in exchange for proof-of-purchases and
"Camel Cash" (see Appendix, Exhibits 5 and 6). The items include
Joe Camel T-shirts, mugs, watches, key chains, wall clocks, pyramid
alarm clocks, back packs, silk and leather jackets, and sun
glasses.
A Camel Lotto has been another attraction (Appendix, Exhibit
7), a Camel calendar which, it may be noted, does not bear the
required statutory warnings (Appendix, Exhibit 8), and an offer of
rock concert tickets with a "pop-up" brochure especially attractive
to children (Appendix, Exhibit 9). "Pop-up" features are
especially attractive to children as indicated by their most
frequent use in children's books and greeting cards. The fact that
the "pop-up" offer was expressed to be "restricted to smokers 21
years of age or older" printed in small letters would hardly
attract the attention of a child delighted by the pop-up of Joe
Camel.
As a result of this advertising campaign, Joe Camel has become
widely recognized among children. In one study, mentioned later in
this petition, 91.3% of 6 year old children (out of a group of 229
children) recognized Joe Camel. As a result, in the five years
from 1988 (when the Joe Camel campaign was started) to 1993,
Camel's share of the illegal children's market (under 18 years of
age) increased from 0.5% to 32.8%, representing a sales increase
from $6 million to $476 million.
The use of the Joe Camel cartoon has aroused the opposition of
many health professionals and organizations such as the American
Medical Association, American Lung Association, American Heart
Association, and the American Cancer Society. It has also been
attacked by former Surgeons General C. Everett Koop and Antonia
Novello, by the Staff of the Federal Trade Commission and by the
Attorneys General from 27 states.
ASH takes a similar view and perceives the advertisements as
unfair and a violation of the Federal Trade Commission Act. It is
accordingly petitioning for a rule to prohibit use of Joe Camel and
other such cartoons to advertise cigarettes and other tobacco
products.
RJR generally alleges that use of the cartoons, and indeed all
industry advertising, is intended merely to induce adult smokers to
switch brands. Such an argument is, however, clearly specious in
view of the fact that survival of the tobacco industry in the
United States depends upon the recruitment of new young smokers to
replace the adult smokers who quit smoking or die.
In 1991 the Coalition on Smoking OR Health and others
petitioned the FTC for action on the Joe Camel advertisements. The
FTC conducted an investigation, File No. 932-3162(106), which
concluded on June 6, 1994, when the FTC on a vote 3-2 voted to
close the investigation. The Commission's Chairman Steiger and
Commissioner Dennis A. Yao both recommended the issuance of an
administrative complaint against RJR's Joe Camel advertising
campaign. Commissioners Mary L. Azcuenago, Deborah K. Owen, and
Roscoe B. Starek III, however, voted to close the investigation
because they considered that the record did not show a link between
the Joe Camel advertising campaign and increased smoking among
children. ASH is filing the present petition because, over the
last two years, a large additional amount of evidence as to the
existence of such a link has become available.
SUMMARY OF ARGUMENT
R. J. Reynoldsþs (RJRþs) Joe Camel cartoon advertisements are
prevalent throughout the United States and attract the interest and
attention of adolescents and children (as has been demonstrated by
numerous medical and scientific studies) with the result that use
of the Camel brand by children and adolescents has greatly
increased (as statistics show) since 1988 when the Joe Camel
advertising campaign began.
The Joe Camel advertisements, which are prevalent throughout
the United States, are unfair and in violation of the Federal Trade
Commission Act because they take advantage of the inexperience and
credulity of minors by associating amusing characters and
attractive activities with use of a lethal product--cigarettes.
They should, therefore, be regulated and banned by the FTC, which
would have no difficulty in fulfilling the requirements of 15 USC
57a(d) for the promulgation of a rule.
An advertising ban on the use of cartoon characters to promote
cigarette use among the young would not infringe RJRþs first
Amendment rights (U.S. Const. Amend. I) under the Supreme Courtþs
decision in 44 Liquormart, Inc. v. Rhode Island, U.S. Sup. Ct., No.
94-1140, May 13, 1996.
ARGUMENT
I. R. J. REYNOLDS's (RJRþS) JOE CAMEL CARTOON ADVERTISEMENTS
INDUCE ADOLESCENTS AND CHILDREN TO SMOKE
A. Joe Camel cartoon advertisements attract the interest and
attention of adolescents and children.
In a situation where most American adults (over 75 per cent)
now do not smoke and where many of the remaining adult smokers are
either quitting or dying (at a rate of over 400,000 per year from
tobacco caused diseases) the tobacco companies, in order to
survive, must recruit people who can be induced to believe the
tobacco companiesþ allegations that smoking is harmless.
Such people must necessarily be outside the mainstream of
adult, educated, American society which has access to materials on
the dangers of smoking in newspapers, magazines, television
documentaries, and medical and scientific articles, and which
understands the significance of the warnings on cigarettes packs
and advertisements.
Persons without such background knowledge are those to whom
the tobacco industry directs its most seductive advertising. They
include Third World populations (who because of language
differences are unable to understand television documentaries or
American publications and who, even if they can read English, are
deprived of the warnings on tobacco packages and advertisements
which are required by law in the United States), disadvantaged
members of American society with limited education, and children
who, because of their youth and inexperience, are especially
vulnerable to seductive advertising.
Thus, although adults may have read and understood the
significance of the warning labels on cigarette packs and
advertisements few children do. In addition, many adults have been
witness to the illness and death of family members and friends from
tobacco related diseases, which serves to reinforce the warnings.
Children, however, tend to believe that they personally are
indestructible and immortal even though they may be aware that
grandparents or family friends may have died as a result of tobacco
use.
The enticement of Americaþs children to smoke is, from a
public interest viewpoint, by far the most serious aspect of the
tobacco industryþs advertising campaign to recruit the credulous.
Although Third World tobacco caused epidemics are to the detriment
of the United States (because it is often called upon to alleviate
health problems in developing countries), and the tobacco caused
illnesses of the disadvantaged in the United States are a severe
present and increasing charge on public health funds, the
recruitment of children as a new generation of smokers--with all
the concomitant disease, premature mortality, and loss of
productivity--is a far greater threat to the welfare and prosperity
of the United States in the early Twenty-first Century.
There can be no doubt that cartoon characters in general and
Joe Camel in particular attract the interest and attention of
children. For example, in a study to measure product logo
recognition by children 229 preschool children were instructed to
match logos with one of 12 products pictured on a game board.
Twenty-two logos were tested including those representing
children's products, adult products, and those for two popular
cigarette brands--Camel and Marlboro. The children demonstrated
high rates of logo recognition. Recognition rates of the Disney
Channel logo (a silhouette of Mickey Mouse) and Joe Camel were the
highest in their representative categories. The recognition rates
increased with age. Thus 91.3% of 6 year old children correctly
matched Joe Camel with a picture of a cigarette, and even 30% of 3
year old children were able to match Joe Camel correctly.
Other studies have found that children ranged in age from 12
to 19 were more likely to recognize Camel's Old Joe cartoon
character than adults (from 21 to 87 years) 97.7% vs. 72.2%.
Children were also more likely than adults to remember the product
(98.6% vs. 89.6%) and the Camel brand name (95.0% vs. 79.1%).
In addition, children found the Camel cartoon advertisements
more appealing than did the adults. Children were more likely to
think the advertisements looked "cool" (58.0% vs. 39.9%) or
"interesting" (73.6% vs. 55.1%). More of the children thought that
Old Joe was "cool" (58.0% vs. 39.9%) and wanted to be friends with
him (35.0% vs. 14.4%).
A 1994 study reported that 86% of eight-year-old children
recognized Joe Camel, while even a study financed by R. J.
Reynolds found that the adult-only product trade character Joe
Camel had relatively high recognition compared to several other
trade characters, and that recognition was particularly high among
older children.
Given, therefore, general agreement that the Joe Camel cartoon
is recognized and remembered by children and viewed as a þcoolþ
character, it must be considered whether such interest has been
translated into a rise in the sale of Camel cigarettes to children
and adolescents.
B. Joe Camel cartoon advertisements have resulted in a
greatly increased use of Camel cigarettes by adolescents and
children.
1. Advertising in general increases consumption.
The conclusion that advertising in general increases
consumption is so logical that courts have taken judicial notice of
it as a fact. Thus in Central Hudson Gas and Elec. Corp v. Public
Serv. Comm's, 447 U.S. 557, 570 (1980) the Supreme Court stated
that there was a "connection between advertising and demand for
electricity," since "Central Hudson would not contest the
advertising ban unless it believed that promotion would increase
its sales." Similarly, in Posadas de Puerto Rico Associates v.
Tourism Co. of Puerto Rico, 478 U.S. 328, 342 (1986) the Court
stated that the Puerto Rico's Legislature's belief was reasonable
that a ban on advertising for casino gambling would help to reduce
demand for it.
More recently in Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305
1314.1315 (4th Cir. 1995) the Fourth Circuit decided that, as a
matter of law, advertising increases the demand for alcohol. The
Court observed that children simply by walking to school or playing
in their neighborhood were exposed to billboards advertising
alcohol and that it was not necessary for the concerned City
Council to prove conclusively that the correlation between
advertising and consumption in fact existed, or that the steps
undertaken would solve the problem of underage drinking. There is,
therefore, no reason to suppose that tobacco advertisements in
general do not result in increased consumption by new smokers.
Unless advertisements produced results in increased sales it
would, indeed, be difficult to understand why the tobacco companies
spent almost 4 billion annually by 1990 on advertising and
promotion of tobacco products. Although the tobacco companies
alleged that they advertise only to induce smokers to switch
brands, "switchers" would not account for any substantial
increase in the number of customers as brand loyalty is high among
smokers. In order to replace the 400,000 smokers who die each year
from tobacco-related diseases, and those who quit, the tobacco
industry must therefore look to a new generation of young people
and introduce them to addiction.
2. The Joe Camel advertisements have resulted in an enormous
increase in tobacco use by children and adolescents.
The fact that adolescents and children recognize and are
amused by the Joe Camel cartoon might be expected to result in
increased purchases of Camels by the young. Predictably, a large
number of studies have established that recognition and interest in
the advertisements are reflected in a greatly increased consumption
of Camels by children and adolescents.
That this should be the case should not be surprising. A
prominent authority on the subject has stated that þadvertisements
have the ability to convince children to like and desire
practically any productþ. McNeal concluded that advertising is
capable of producing three types of behavior among children:
purchases, purchase requests, and antisocial behavior (e.g.
requests leading to parent-child conflicts). He argues that the
purchase may not be immediate, because the child may develop and
store in his or her memory many of the orientations and norms
reflected in advertising until a purchase opportunity occurs.
One of the reasons why children are more interested than
adults in the Joe Camel advertisements may be because they are
placed where children are more likely to see them. Camels, for
example, appear in teen movies such as þWho Framed Roger
Rabbit?þ and þHoney I Shrunk the Kids.þ They are also found on
posters in malls where youngsters congregate, on billboards, T-
shirts, baseball caps, and at televised sporting and entertainment
events such as the Camel þMud and Monsterþ series.
It has been pointed out by DiFranza (supra) on seven surveys
of 3,400 smokers in the 7th through 12th grades, conducted between
1976 and 1988 in Georgia, Louisiana, and Minnesota, that Camel was
given as the preferred Brand by less than 0.5%. In 1986, Camels
were most popular with smokers over the age of 65 years, of whom
4.4% chose Camels and least popular among those 17 to 24 years of
age of whom only 2.7% preferred Camels.
In the five years, from 1988 (when the Joe Camel campaign was
started) to 1993, Camel's share of the illegal children's cigarette
market (under 18 years of age) increased from 0.5% to 32.8%
representing a sales increase from $6 million to $476 million.
This accounted for one quarter of all Camel sales.
It has in fact, been observed that Joe Camel has reversed the
fortunes of Camel cigarettes proving just how much a well-executed
image blitz can do for a decrepit brand. The Tobacco Reporter
itself has admitted that the campaign halted slumping sales
"contributing to hefty 14 percent change in the brand's market
share during 1990." This was a mere two years from the start of
the campaign.
A California study has found that tobacco advertising is
causally related
to young people becoming addicted to cigarettes; the sum
of this evidence is considerable although not yet
complete. Also, there is strong evidence that most
smokers become addicted when they are minors and do not
understand the long-term consequences of smoking.---Given
the potential harm to the health of future generations,
public policy should, as a matter of urgency, extend the
ban on tobacco advertising to cover not only electronic
media but also all other forms of cigarette advertising
and promotion."
Continuing research supports the view that tobacco advertising
increases sales to the young. Thus, as a result of combined
research by Professor Richard W. Pollay and Assistant Professor S.
Siddarth, Professors of Marketing, University of British Colombia,
Assistant Professor Michael Siegal at the Boston University School
of Public Health, Messrs Robert K. Merrett, Gary A. Giovino and
Michael P. Erikson of the Centers of Disease Control and
Prevention, Office of Smoking and Health, and Ms. Anne Haddix in
the Epidemiology Program Office, cigarette brand shares of
advertising voice were found to be significantly related to
realized market shares, with advertising sensitivity about three
times larger among teenagers than among adults.
The study also found that cigarette competition between the
tobacco companies seemed to be predominated by the battle of brands
for market share among the young, and the brand choices of
adolescent smokers were heavily concentrated on those brands with
the largest advertising budget.
The Pollay Study (supra) ends with the conclusion:
Given the many behavioral, strategic, historical,
theoretical, and empirical lines of argument and research
to which our result adds, the preponderance of logic and
evidence indicates that cigarette advertising is an
important influence on the smoking behavior of youths.
Scholars should treat the assertion that cigarette
advertising has little or no effect on adolescents as
naive or disingenuous.
The influence of tobacco advertising was also emphasized in
the 1995 findings of N. Evans and others which showed that
tobacco advertising is a greater influence on adolescent smoking
initiation than either exposure to peer or family smokers. These
findings refute the tobacco companies' allegation that the young
smoke because of peer pressure and not because of the influence of
advertising.
The results of this intensive advertising are reflected in the
most recent figures (for 1993) on cigarette smoking by the young
published by the Centers for Disease Control and Prevention, Office
on Smoking and Health entitled "State Tobacco Control Highlights
1996" which indicate alarming rates of consumption. In Grades 9-12
30.5% children had smoked one or more days over the past month,
while 13.8% had smoked 20 + days in the past month.
Finally, the relationship between the use of tobacco by
adolescents and children and tobacco advertising was described by
Dr. Antonia C. Novello, former U.S. Surgeon General at a
Congressional hearing held on February 7, 1994, and presided
over by the Hon. Henry A. Waxman (Chairman):
In the United States every year it has been said 3,000
children start to smoke by the 4th grade and by the 10th
grade, 2/3 have already started smoking. And by the time
they are 21, 90 percent are already hooked on nicotine.
In fact, 75 percent of smokers begin to smoke before the
age of 18, and we estimate that if 20 million of the 70
million children now living in the United States smoked
cigarettes, at least 5 million will die of smoking-
related diseases.
I am sure the industry knows of this data and I am
equally sure that they understand the significance. But
for all efforts in data collection, scientific analysis
and education, we might as well be sending out smoke
signals. Because the facts regarding health have still
not filtered through the tobacco industry's greed.
Each year, you see, the tobacco industry spends $4
billion on cigarette advertising and promotion. And that
is $4 billion, let me remind you, that is tax deductible
as a cost of doing business and is subsidized by the
American public. Each year the industry garners $221
million in profits from illegal sales to children and
each year the industry tells us they advertise only to
promote brand loyalty. May I remind you that brand
awareness in early childhood translates to brand
preference in adulthood.
I can tell you that if the industry were really serious
about their concerns for children, they would restrict
their advertising to adults, and then take extra
precautions to restrict advertising that caters to
children in magazines they read, in clothes they wear,
and in the places they gather.
C. Joe Camel's appeal to adolescents and children and the success
of the brand since the introduction of the cartoon character
demonstrate RJR's determination to secure its market in the
next generation.
Both the appeal of Joe Camel and the success of the brand are
not lucky examples of random commercial enterprise, but are the
result of careful corporate strategy as indicated in corporate
documents prepared before the launching of the cartoon character
Joe Camel.
A growing body of evidence to support such a conclusion is
being derived from the increasing number of formerly confidential
corporate documents which are emerging.
One such document is a Strategic Research Report entitled
"Younger Adult Smokers: Strategies and Opportunities" written by
Diane S. Burrows and completed February 29, 1984.
The report begins by explaining (p.2) that younger adult
smokers are important to RJR because they are the only source of
replacement smokers. In view of the fact that repeated government
studies have shown that less than one-third of smokers (31%) start
after age 18, and only 5% of smokers start after age 24, the Report
states:
today's younger adult smoking behavior will largely
determine the trend of industry volume over the next
several decades. If younger adults turn away from
smoking, the industry must decline, just as a population
which does not give birth will eventually dwindle. In
such an environment, a positive RJR sales trend would
require disproportionate share gains and/or steep price
increases (which could depress volume).
The recognition that younger adult smokers are critical to
RJR's long term performance and profitability led the report to
make recommendations that RJR should make a substantial long term
commitment of manpower and money dedicated to younger adult smoker
programs. For example (p.33):
RJR should develop objectives, planning procedures, and
marketability criteria for younger adult brands/programs
which reflect their unique, long term character. These
may differ significantly from the approaches/measures
which are appropriate to established brands or to new
brands addressing older smokers.
- Thoroughness should be emphasized.
- Innovation, experimentation, and multiple approaches
should be encouraged.
- Rigorous, objective consumer-based action standards
should be established to ensure that volume results will
ultimately follow and that continuing Management
commitment is warranted.
RJR should make resources available to develop/improve
its capabilities to thoroughly identify and track
demographics, values/wants, media effectiveness, and
brand performance within sectors of the younger adult
smoker population. These tools will be critical to the
development and implementation of effective programs
among younger adult smokers.
Because of the sensitivity of the younger adult smoker
market, brand development/management should encompass all
aspects of the marketing mix and maintain a long term,
single-minded focus to all elements -- product,
advertising, name, packaging, media, promotion, and
distribution. Tactics which would negatively affect the
integrity of the strategy should be avoided. [NOTE:
Text underlined in original]
The existence of such long term policies shortly before the
introduction of the Joe Camel cartoon character serves to refute
any suggestion that Joe Camel's appeal to the young was unintended.
As discussed earlier in this petition adolescents and children
observe and remember advertisements for products years before they
are ready to purchase them and those who have enjoyed the antics of
Joe Camel have therefore been conditioned to start smoking the
brand on attaining the age of 18 the age at which RJR plans for
younger adults to start smoking. In fact as is well known many
youngsters start smoking illegally long before that age.
Finally, the report considers the topic of the social
acceptability of smoking in relation to young adults (p.40):
Given younger adult smokers' keen interest in peer
acceptance/approval, it is likely that younger adult
smokers would be interested in a brand which effectively
addresses social acceptability and also provides the
other smoking benefits they want. However, if that brand
is positioned as "socially concerned", younger adult
smokers may try it as a novelty but are unlikely to adopt
it as a regular brand -- younger adults who wish to be
seen as "concerned" are more likely to choose to be
nonsmokers. [NOTE: Text underlined in original]
The report continues by stressing "Key Points" (p.41):
Products addressing social acceptability could
revolutionize the market in the same way filters did in
the "health scare" environment of the 1950's.
The long range outlook for such products will depend on
their acceptance by younger adult smokers.
To be adopted by younger adult smokers, a social
acceptability brand should:
1. Offer adequate smoking satisfaction as well as
effective relief from social pressures.
2. Be positioned positively rather than as "socially
concerned", perhaps using essentially the WINSTON
strategy of the 1950's.
The social environment of Joe Camel and his friends as popular
party goers or sports participants in situations which would appeal
to any adolescent or child seeking acceptance demonstrates how
faithfully RJR has carried out the recommendations of its Marketing
Development Department.
It also shows that the appeal and success of the Joe Camel
cartoon character are an important part of an established RJR
policy to secure another generation of smokers for its market.
II. AS THE JOE CAMEL ADVERTISEMENTS SEDUCE THE YOUNG TO THEIR
DETRIMENT -- BY TAKING ADVANTAGE OF THEIR INEXPERIENCE AND
CREDULITY -- THEY VIOLATE THE FEDERAL TRADE COMMISSION ACT AS AN
UNFAIR ACT OR PRACTICE.
A. In General
Under the Federal Trade Commission Act "unfair or deceptive
acts or practices in or affecting commerce, are declared unlawful"
15 USC 45 (a) (1) and the Federal Trade Commission (FTC) is
empowered and directed to prevent any persons, partnerships or
corporations from using unfair or deceptive acts or practices in or
affecting commerce 15 USC 45 (a)(2).
The Commission also has authority under 15 USC 57 a (1) (B)
to prescribe rules which define with specificity acts or practices
which are unfair or deceptive acts or practices in or affecting
commerce. The Commission, however, shall issue a notice of
proposed rulemaking "only where it has reason to believe that the
unfair or deceptive acts or practices which are the subject of the
proposed rulemaking are prevalent" (emphasis supplied) 15 USC
57a(b)(3).
A determination that unfair or deceptive acts or practices are
prevalent shall be made only if the Commission has issued cease or
desist orders regarding such acts or practices, or "any other
information available to the Commission indicates a widespread
pattern of unfair or deceptive acts or practices" 15 USC 57a
(b)(3).
ASH is filing the present petition under this subsection with
the object of making available to the Commission information which
indicates a widespread pattern of unfair or deceptive acts or
practices.
The Joe Camel logo has been used to promote sales throughout
the United States (and many other parts of the world). It has
appeared in countless newspapers, magazines, on billboards, and on
promotional merchandise from T-shirts to baseball gear, all
designed to appeal to a vast youth audience and market. It has
also been the subject of massive commercial mailings throughout the
land, as a result of which it is recognized by more children than
Mickey Mouse.
The saturation promotion of the Joe Camel advertisement more
than satisfies the requirement that the unfair or deceptive acts or
practices connected with it are "prevalent" -- which in its
dictionary sense means "widely existing" (Webster New World
Dictionary, Second College Edition). A more accurate description
might be that the Joe Camel advertisements are not only prevalent,
but are virtually ubiquitous, and that they certainly merit the
FTC's intervention. The question as to what is an unfair or
deceptive trade practice usually depends upon the facts in each
case Johnson v Phoenix Mut. Life Ins. Co., 266 S.E. 2nd 610, 621
(N.C. 1980). In Johnson, the North Carolina Supreme Court said,
with reference to a North Carolina act modeled on the federal
statute (15 U.S.C. 45) that while "an act or practice which is
unfair may also be deceptive, or vice versa, it need not be so for
there to be a violation of the Act."
A practice may also be found to be unfair under section 45
even without showing that the offending party intended to cause
consumer injury. Orkin Exterminating Co., Inc. v. F.T.C., 849 F.2d
1354 (11th Cir. 1988), reh. den. 859 F.2d 928, cert.den. 488 U.S.
1041.
As a general rule, however, a practice is "unfair" within the
meaning of the section when it offends established public policy
and when the practice is immoral, unethical, oppressive,
unscrupulous or substantially injurious to consumers. Spiegel,
Inc. v. F.T.C., 540 F.2nd 287 (7th Cir.1976).
The Joe Camel campaign clearly comes within this definition in
that it is contrary to established public policy which discourages
children from smoking, is immoral, unethical, oppressive and
unscrupulous in that it uses a seductive format to take advantage
of the immaturity of the young to induce them to smoke, and thereby
seriously injures both the young in addicting them to nicotine and
the community which must absorb the costs of the illness and death
caused by use of the product promoted.
B. Section 45 has been interpreted as imposing a stringent
standard of responsibility to which the Camel campaign does not
conform.
The standard of responsibility imposed by Section 45 is
stringent. Thus, proof of intention to deceive is not requisite to
a finding of violation of Section 45. F.T.C. v. Sterling Drug,
Inc., 317 F.2d 669, 674 (2nd Cir. 1963). Moreover, false, unfair
or deceptive acts defined in Section 45 need not be such as would
constitute fraud, as that term is understood in law. Thus, in
Sterling the court emphasized that in reviewing F.T.C. actions
prohibiting unfair advertising practices under the Federal Trade
Commission Act a court must
consider the advertisement in its entirety and not . . .
. engage in disputatious dissection. The entire mosaic
should be reviewed rather than each tile separately.
See also Avis Rent A Car System, Inc. v. Hertz Corp., 782 F.2d
381,385 (2nd Cir. 1986).
It has, therefore, been repeatedly held that in determining
whether advertisements amount to an unfair practice, the Commission
will consider the all-over impression they make on the public.
National Bakers Services, Inc. v. F.T.C., 329 F.2d 365 (7th Cir.
1964); County Tweeds, Inc. v. F.T.C., 326 F.2d 144 (2nd Cir. 1964).
Furthermore, the meaning and impression upon the mind of the reader
is assessed from the sum total not only of what is said, but also
of all that is reasonably implied. Speigel, Inc. v. F.T.C. 411
F.2d 481 (7th Cir. 1969).
Most importantly, the courts have held that Section 45 is not
intended for the protection of experts, but for the general public
including the ignorant, the unthinking and the credulous, who in
making purchases do not stop to analyze but are governed by
appearances and general impressions Gulf Oil Corp. v Federal Trade
Commission, 150 F.2d 106 (5th Cir. 1945); Parker Pen Co. v Federal
Trade Commission, 159 F.2d 509. (7th Cir. 1947); Feil v F.T.C. 285
F.2d 879 (9th Cir. 1960); Jeter v. Credit Bureau, Inc., 754 F.2d
907, 911 (11th Cir. 1985).
It is therefore obvious that children who, by virtue of their
youth and immaturity, must be included among "the ignorant, the
unthinking and the credulous" are especially entitled to the
protection against unfairness of Section 45. The unfairness of Joe
Camel advertisements consists in the presentation of colorful and
amusing materials to children who, for a number of reasons, have a
special vulnerability.
In the Pollay study (supra) it was found, first, that no
isolation or community protects youth from the effects of
advertising, and it quoted a retired cigarette advertising man for
Philip Morris who admitted that he did not know any way of
advertising cigarettes that did not tempt young people to smoke.
Second, the prevalence of cigarette advertising makes it
familiar, respectable and therefore reassuring.
Third, vulnerable youths tend to exaggerate the social
benefits of smoking (by overestimating the prevalence of and
popularity of smoking among peers and adults) and to underestimate
the risks (by underestimating the prevalence of negative attitudes
towards smoking held by their peers).
Fourth, the visual experience of cigarette advertisements
tends to bypass logical analysis. Cigarette advertisements show
people who are healthy and vigorous or (as in the case of Joe
Camel) depict situations featuring adventure-seeking, social
approval, success and sophistication, all themes likely to appeal
to young people.
Fifth, the cigarette companies have, in their advertisements
and sales campaigns, focused on the psychological need of
adolescents to be independent. Thus, the Pollay study (supra)
cites an example:
R. J. Reynolds' Canadian affiliate commissioned
customization of "Youth Target Study '87" and got
extensive data on subjects as young as 15. The
popularity of their starter brand is attributed to their
belief that "very young starter smokers choose Export A
(cf. Camel) because it provides them with an instant
badge of masculinity, appeals to their rebellious nature
and establishes their position amongst their peers." Its
major competitor targeted 15 year olds in its media plans
and explicitly rejected "smoking" as a target audience
criterion, thereby paying equally to reach both underage
smokers and/or non-smokers.
It is therefore clear that the young are unusually sensitive
to the blandishments of Joe Camel, that RJR are aware of this, and
that they exploit the weaknesses of children to the children's
detriment and RJR's profit.
C. It is time for the FTC to prohibit use of cartoons for tobacco
advertising.
The FTC concluded an investigation of the Joe Camel
advertisement campaign in 1994 (File No. 932-3162/106) and it is
significant that Commissioners Steiger and Yao both recommended the
issuance of an administrative complaint against RJR. The three
other Commissioners, however, felt that the record did not show a
link between the Joe Camel advertising campaign and increased
smoking among children. There is now abundant evidence, some of it
summarized or referred to in this petition, that such a link
exists. It is therefore appropriate that the Commission act
without further delay as the sale of Camel cigarettes to the young
continues to rise, with the concomitant threat to the health of the
next generation. It might, therefore, be appropriate to consider
analogous cases where unfair trade practices were involved.
In ITT Continental Baking Co., Inc. v. F.T.C., 532 F.2d 207
(2nd Cir. 1976) the court upheld the Commission's finding that
television presentations were misleading to children. Television
commercials for Wonder Bread contained a fantasy growth sequence,
a visual insert in which a small child was shown growing to the
size of a 12-year-old in a few seconds. Although the
advertisements were aimed mainly at women between 18 and 49 years
of age with children below 18, substantial numbers of children were
in the viewing audience (about 26%).
The court accepted psychiatric testimony that children below
the age of seven would believe that eating Wonder Bread would cause
them to grow on the spot. Older children between the ages of six
and twelve years might reject the literal representation of reality
but would tend to believe that Wonder Bread had some special
capacity to enhance growth.
The advertisements might be upsetting to young children who
might feel that there was something wrong with them because they
did not grow bigger and taller after eating Wonder Bread. Older
children could react by becoming distrustful of information from
adult sources.
In the instant case, Joe Camel advertisements give young
people the impression that it is only necessary to smoke Camels to
become accepted by other smokers and to lead a glamorous social
life.
Courts in numerous other cases, mostly involving adults, have
upheld F.T.C. action where advertising was unfair, deceptive or
otherwise contrary to public policy. Thus, in Modernistic Candies
v Federal Trade Commission, 145 F.2d 454 (7th Cir. 1944) the court
held that the marketing of chewing gum by means of "Ballgum" boards
was an "unfair trade practice" contrary to public policy, and
within the Commission's power to prohibit by a cease and desist
order, as it was devised to encourage and induce merchandising by
gambling. The encouragement of childhood smoking would, of course,
be an even more serious infringement of public policy against
encouraging children to smoke.
Advertisements which, while making no express false statement
but which implied a situation which did not correspond with the
truth have also been held to be in violation of Section 45. In one
example the court held that an advertisement violated Section 45
where it stated that processed cheese slices were made from five
ounces of milk per slice which also implied that the consumer got
the amount of calcium found in five ounces of milk when in fact 30%
of the calcium in five ounces of milk is lost in processing.
Kraft, Inc. v F.T.C., 970 F.2d 311 (7th Cir. 1992), cent. den. 113
S. Ct. 1254, 122 L.Ed 2d 652.
In another case, an advertiser's representations that a single
scientific report supported a finding that use of its dietary
supplement reduced risk of cancer were unfair and deceptive under
Section 45 because they conveyed a misleading impression. F.T.C.
v Pharmtech Research, Inc. 576 F. Supp 294 (D.C.DC, 1983).
Similarly, the Camel cartoons convey the misleading impression
that smoking Camels is an activity indulged in by robust, healthy
characters who enjoy an exciting social life without any threat of
the addiction, disease and death which smoking brings. The message
is, moreover, presented in the cartoon form which is most
attractive to the least well-informed customers namely children.
An actual withholding of information in an advertisement may
also amount to an "unfair and deceptive practice", as where callers
of a 900 number were told to stay on line for a toll free 800
number for additional information about obtaining credit cards.
The callers waiting for 800 numbers were not informed how long they
would have to wait through a recorded message informing them of a
list of banks they could write to throughout the United States, and
that the main purpose and effect of the 800 number was to solicit
memberships FTC v U.S. Sales Corp., 785 F. Supp. 737, (N.D. Ill.
1992) modified.
The information withheld in that case (although held to be
"unfair and deceptive") is trivial in comparison with information
withheld from a Joe Camel cartoon viewer, most importantly the risk
of addiction from use of the cigarette, severe damage to health,
and threat to life itself.
Finally, proof of actual injury is NOT required to show a
violation of Section 45. Speigel, Inc. v. F.T.C., 494 F.2d 59,
(7th Cir. 1974), cert. den. 109 S. Ct. 865, 488 U.S. 1041, 102
L.Ed.2d 989. The violation, moreover, is especially serious where
the potential for injury is enormous as is the damage from the
addiction, illness and death of a whole generation of young
smokers. The courts have repeatedly held, moreover, that "a
complete reading of the Act supports the conclusion that its aim
was to protect consumers" First Comics, Inc. v. World Color Press,
Inc., 884 F. 2d 1033, 1039 (7th Cir. 1989).
ASH therefore strongly urges that the Commission act without
delay to initiate a rulemaking to ban the use of cartoons in the
advertisement of cigarettes.
D. The Commission should have no difficulty in fulfilling the
requirements of 15 USC 57 (a)(d) for the promulgation of a rule.
Under 15 USC 57(a)(d) the Commission's statement of basis
and purpose required to accompany a rule must include (A) a
statement as to the prevalence of the acts and practices treated by
the rule; (B) a statement as to the manner and context in which
such practices are unfair or deceptive; and (C) a statement as to
the economic effect of the rule, taking into account the effect on
small business and consumers.
The fact that Joe Camel advertisements are prevalent, and the
fact that they are unfair in that they seduce children and
adolescents to their detriment, and to RJR's enrichment, have been
discussed earlier in this petition and it is suggested that the FTC
would have no trouble in establishing and stating the basis and
purpose for its regulation.
In any event, courts have held that even where there is a
limited record as to the prevalence of a practice on a nationwide
basis or where the data reviewed relates only to a very few states,
the practice can be found to be prevalent enough to warrant a
regulation. Amer. Fin. Servs. Ass'n. v. F.T.C., 767 F.2d 957 (D.C.
Cir. 1985). See also Pennsylvania Funeral Directors Ass'n. v.
F.T.C., 41 F.3d 81, 87 (3rd Cir. 1994) where the court upheld an
F.T.C. regulation prohibiting funeral directors from charging
casket handling fees in areas where caskets were sold by third
parties although there was limited record as to the prevalence of
the practice on a national basis.
As regards the economic effect of the rule, including the
effect on small businesses and consumers, it has been held that
Congress did not intend that the statement of a rule's economic
impact should place excessively strict burdens on the FTC. The FTC
is not therefore required to base its required cost benefit
analysis in determining unfairness of a particular practice upon
rigorous, quantitative, economic analysis American Financial
Services Association v FTC. 767 F.2d 957 (D.C. Cir. 1985).
As regards the economic consequences of regulation, the
reduction in numbers of children and adolescents smoking would have
long- term favorable effects on the national health by saving them
from acquiring tobacco addiction. According to the Report of the
Surgeon General: þPreventing Tobacco Use Among Young Peopleþ p.9
at least 3.1 million adolescents and 25 percent of 17 and 18 year
old are current smokers. Tobacco use primarily begins in early
adolescence, typically by age 16, with almost all first use
occurring before the time of high school graduation. All these
children are potential victims of tobacco-caused disease.
The Honorable Donna E. Shalala, the Secretary of Health and
Human Services, put the problem in perspective in her letters to
the Speaker of the House of Representatives and to the President
of the Senate which accompanied the Report:
Smoking kills 434,000 Americans each year. Adolescent
smoking and smokeless tobacco use are the first steps in
this totally preventable public health tragedy. The
facts are simple: one out of three adolescents in the
United States is using tobacco by age 18, adolescent
users become adult users, and few people begin to use
tobacco after age 18. Preventing young people from
starting to use tobacco is the key to reducing the death
and disease caused by tobacco use.
If the next generation can be saved from tobacco use, the
savings for the nation and economy will be enormous. The Centers
for Disease Control and Prevention (CDC) have estimated that in
1993 direct medical costs associated with smoking-related disease
in the United States totaled $50 billion.
The study also found that smoking is responsible for
approximately 7 percent of total U.S. health care costs and that in
1993 hospital expenditures accounted for 54 percent ($27 billion)
of all smoking related medical costs.
The HHS Office on Smoking and Health explained that the
$50 billion figure is most likely a
conservative one because the medical costs
attributed to burn care from smoking-related
fires, perinatal care for low birth weight
infants of mothers who smoke, and treatment of
disease caused by secondhand smoke exposure
were not included in the calculation. Also,
the study does not consider indirect costs of
smoking resulting from lost productivity and
early death.
An earlier study by the Office of Technology Assessment of the
U.S. Congress had, however, found that lost productivity caused by
smoking cost the U. S. economy $47 billion in 1990.
Losses to the U. S. economy would therefore total nearly $100
billion every year for smoking-caused morbidity, mortality and loss
of productivity and any regulations which would have the effect of
presenting or diminishing such a catastrophe would be economically
justified.
In regulating, the F.T.C. is obliged to consider the economic
effect upon small business. Any small businesses adversely
affected, however, would only be those who illegally sell
cigarettes to children and adolescents and, as persons engaged in
criminal activities, their interests would not merit consideration.
There would not, therefore, appear to be any reason why the
FTC should not be able to fulfill the requirements of 15 USC 57
a (d) for the promulgation of a rule.
Lastly, it has been observed that a
Final justification for social regulation is to protect
vulnerable populations who are not capable of maturely
weighing the risks of the dangerous activity. Government
has long had the constitutional authority to protect the
health and safety of children and adolescents through its
parens patriae powers. Hawaii v. Standard Oil, 405 U.S.
251, 257 (1972). Arguments for voluntary choice evaporate
when the consumer is a minor incapable of exercising the
requisite choices the law requires. Consequently,
government interventions targeting the advertisement and
sale of cigarettes to children and adolescents, .... rest
on firm ground.
III. A BAN UPON THE USE OF JOE CAMEL AND SIMILAR CARTOON CHARACTERS
TO ADVERTISE CIGARETTES WOULD NOT INFRINGE RJR'S FIRST AMENDMENT
COMMERCIAL SPEECH RIGHTS UNDER THE PRINCIPLES ENUNCIATED BY THE
U.S. SUPREME COURT IN 44 LIQUORMART INC. ET AL. V. RHODE ISLAND ET
AL.
A. In General
A ban upon the use of Joe Camel and similar cartoon characters
to advertise cigarettes would appear to be valid under the
principles enunciated by the U.S. Supreme Court in its recent
decision in 44 Liquormart Inc. et al. v. Rhode Island et al., U.S.
Sup Ct., No. 94-1140, May 13, 1996. In that case the Court held
that the Twenty-First Amendment did not save a ban on the
advertisement of liquor prices which the State of Rhode Island had
imposed allegedly as a means of promoting temperance.
The reasoning of the several Justices in that case provides
useful guidelines for the regulation of the cartoon advertising
which is the subject of this petition.
B. First Amendment requirements would justify a ban on Joe Camel
Advertisements.
Justice Stevens, joined by Justice Kennedy, Justice Souter and
Justice Ginsberg stressed that the First Amendment protects the
dissemination of truthful and nonmisleading commercial messages
about lawful products and services in order that consumers receive
accurate information about them. The State of Rhode island was
therefore violating the First Amendment when it banned the
advertising of liquor prices, thereby depriving consumers of valid
information.
The Justices stated, however, that the "special nature" of
commercial speech justified state restriction to regulate
potentially deceptive or overreaching advertising. Even here,
however, state regulation should not be allowed to be wider than
necessary.
In the Rhode island case there was no suggestion that the
advertising of liquor prices was in any way deceptive or misleading
and its total suppression was an unnecessary and extreme method to
discourage alcohol consumption.
In contrast, the Joe Camel cartoon advertisements are
deceptive, misleading and unfair in that they imply that smoking is
a safe and healthy activity for the target audience - children and
adolescents. Moreover, the use of a cartoon camel does not convey
truthful information. Camels don't smoke.
C. A ban on Joe Camel cartoon advertisements would serve an
important state end related to consumer protection.
The ban on price advertisements by Rhode Island was also
invalid under the First Amendment, in that it did not advance the
State's substantial interest in promoting temperance. The prices
might, after all, encourage abstinence rather than the reverse.
As has been discussed herein, the Joe Camel advertisements
have caused a spectacular increase in the illegal consumption of
tobacco by the young, a situation which condemns the next
generation to an epidemic of disease and suffering, and enormous
medical and economic loses for all.
Because of the impressionable nature of young people and their
inability to make decisions in their own interest (as recognized
and demonstrated by laws protecting them from the consequences of
unwise contracts and premature sex and marriage) the only feasible
way to save them from this particularly seductive advertising is to
ban it altogether. There would be no difficulty in showing that
such action would advance the state interest "to a material
degree".
D. A ban on the Joe Camel cartoon advertisements would satisfy the
Central Hudson test.
While agreeing with the principal opinion that Rhode Island's
prohibition on alcohol price advertising was invalid, Justice
O'Connor, joined by the Chief Justice, Justice Souter and Justice
Breyer, approved the more narrow application of the First Amendment
question established by the test in Central Hudson Gas and Elec.
Corp. v. Public Serv. Comm's of N.Y. 447 U.S. 557,566 (1980).
Under that test, a ban on the Joe Camel cartoon advertisements
would pass muster on the following grounds:
1. The "speech" at issue, is conducive to unlawful activity
- the use of tobacco by children, and is misleading
regarding the risks of smoking;
2. The government interest is substantial - no less than the
health and welfare of the next generation of Americans;
3. The regulation would directly advance the government
interest by removing a substantial cause of illegal
cigarette sales to the young; and
4. The ban is the only way of attaining the state's object
of protecting children from the seductive Camel cartoon
advertisements.
Finally, a ban on Joe Camel and other cigarette industry
cartoon characters would constitute a very narrow limitation on the
power to advertise. It would leave a wide range of advertising
open to the tobacco companies, and would operate as only a very
limited gag on free speech, which is legally justifiable in the
circumstances. Even Justice Blackmun, a strong defender of
commercial speech, stated in R.A.V. v. City of St. Paul, 112 S Ct
2538, 2560 (1992) that not all expression was accorded the same
First Amendment protection.
If all expressive activity must be accorded
the same protection, that protection will be
scant. The simple reality is that the Court
will never provide child pornography or
cigarette advertising the level of protection
customarily granted political speech.
CONCLUSION
RJR's Joe Camel advertisements attracted the attention of
children and adolescents resulting in a large increase in the use
of cigarettes by them.
Such advertisements are prevalent throughout the United States
as a result of a massive publicity campaign employing every trick
of art, color, science and psychology to appeal to children and
adolescents. Such a campaign has, moreover, been extremely
successful as evidenced by the huge increase in the use of Camels
by minors as described earlier in this Petition.
The Joe Camel advertisements are clearly unfair in that they
take advantage of the inexperience and credulity of children and
adolescents and induce them to smoke, to their detriment, and use
of such advertisements constitutes an unfair act or practice in
violation of 15 USC 45. So too with regard to the use of other
cartoon characters in ads for tobacco products.
The Commission is therefore empowered to issue a notice of
proposed rulemaking pursuant to 15 USC 57a(3) to ban such cartoon
advertisements on the basis of the information contained in this
petition as well as in its own files, and would be able to satisfy
the statutory requirements for such a rulemaking.
A ban upon cartoon cigarette advertisements would be
permissible under the First Amendment to the U.S. Constitution as
applied by the U.S. Supreme Court in the recent case of 44
Liquormart Inc. v. Rhode Island; see also Penn Advertising v.
Schmoke, 117 S.Ct. 1569 (Mem, denying cert. 1997), and 101 F.3d 332
(4th Cir. 1996).
For these and other reasons ASH accordingly petitions the
Federal Trade Commission to regulate and ban the use of any and all
cartoon characters in advertising cigarettes or other tobacco
products.
Respectfully submitted
Friday, July 11, 1997 Action on Smoking and Health
(ASH)
By_____________________________
2013 H Street N.W.
Washington, D.C. 2006
Telephone (202) 659-4310
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