Current State Efforts to Enforce the Master Settlement Agreement?s Cigarette Marketing Restrictions

Ilana Knopf, Staff Attorney, Tobacco Project

Ilana Knopf, Staff Attorney, Tobacco Project

States that are parties to the tobacco Master Settlement Agreement (“MSA”) have become increasingly concerned that several of R.J. Reynolds’ (“RJR”) recent promotions involving its Camel and Kool cigarette brands violate provisions in the MSA that restrict the advertising, marketing and promotion of the tobacco companies that have signed the MSA (“Participating Manufacturers” or “PMs”). The promotions employ a broad spectrum of tools to make their products appealing to youth (defined in the MSA as persons under the age of 18) and very young adults (whom youth often try to emulate).

The MSA settled lawsuits brought by 46 States, the District of Columbia, Puerto Rico, and four territories (“Settling States”), a large number of which had alleged that the defendant tobacco companies had targeted minors in the advertising and promotion of their products. The MSA contains a number of restrictions intended to eliminate those marketing practices or reduce youth exposure to them. These restrictions are in Section III of the MSA; the most general is Section III(a), which prohibits any PM from “tak[ing] any action, directly or indirectly, to target Youth within any Settling State in the advertising, promotion or marketing of Tobacco Products . . . .”

Other MSA provisions relevant to preventing youth exposure to tobacco marketing are:

  • Section III(b), which bans PMs from using cartoons in the advertising, promoting, packaging or labeling of Tobacco Products. Cartoons are defined to include “the use of comically exaggerated features” and “the attribution of human characteristics to animals, plants or other objects . . . .”
  • Section III(c), which prohibits PMs from engaging in more than one Brand Name Sponsorship in any twelve-month period, and prohibits any sponsorship of certain events, including concerts.
  • Section III(e), which prohibits any payment in exchange for the use, display or reference to a Brand Name in a motion picture or other entertainment medium including videos or video games.
  • Section III(f), which prohibits the distribution or sale of merchandise bearing a Brand Name, which is defined to include logos, symbols, recognizable pattern of colors, or any other “indicia of product identification identical or similar to, or identifiable with, those used for any domestic brand of Tobacco Products.” Exceptions include “written or electronic publications” and merchandise used within an Adult-Only Facility and not distributed to any member of the general public.
  • Section III(l), which requires PMs to commit to, among other things, “clearly and regularly communicate to its employees and customers its commitment to assist in the reduction of Youth use of Tobacco Products.”

From the summer of 2007 through the present, States have been communicating their concerns to RJR that some of its campaigns have violated these restrictions. States have cautioned RJR and, as part of ongoing investigations, have sought additional information regarding The Kool XL campaign and several of the Camel promotions, including Camel No. 9, Camel Artist Packs, Camel Signature Blends, and Camel “Farm.”

The Kool XL promotion involves a package delivered by mail that says on the outside “Cars, Fashion and a Free DVD Inside.” Inside are materials that are clearly designed to appeal to young African-Americans, including coupons, a small magazine with articles on fashion and cars, and a DVD titled, “The Art of 16 Bars,” which describes how to jump-start a rap music career. There is also a promotional website. The States have communicated to RJR their concern that, given youths’ well documented interest in cars, music and fashion, promotions focused on these areas may well be targeting youth in violation of Section III(a). Further, the Kool branding on the DVD packaging may implicate Section III(f)’s ban on Brand Name Merchandise.

The Camel No. 9 promotion received significant media attention in 2007 when States (as well as several U.S. Senators, members of Congress, and medical, public health and women’s organizations) communicated to RJR their concern that the campaign appealed to girls and very young women through the shiny, bright pink and teal artwork splashed throughout its “vintage” fashion advertisements and other style and beauty tips published in magazines with millions of youth readers. Concerns were also raised by promotional events that were ostensibly restricted to adults but at which goody bags were distributed filled with similarly colored candy-flavored lip gloss, cell-phone jewelry, henna-like wrist bands and other trinkets, and coupons for a clothing store popular with youth. In their correspondence to RJR, the States noted Camel No. 9 promotion’s appeal to youth and the resulting potential Section III(a) Youth Targeting violation, as well as the apparent Section III(f) Brand Name Merchandise violation raised by the goody-bag items.

Another promotion of concern to States involves RJR’s commissioning artwork from various artists to design special packs of Camel cigarettes. The artists have been featured on RJR’s promotional website and some of the artists have displayed their Camel cigarette pack designs on their professional websites. In some cases, the artists’ websites have included an endorsement of RJR for providing the artist the opportunity to have his or her art commissioned. In addition to potentially violating Section III(e)’s prohibition on Payments Related to Tobacco Products and Media, the Camel Art Packs’ frequent, cartoon-like depictions may violate the Ban on Use of Cartoons (Section III(b)), and the inevitable collection of these limited-edition packs raises Section III(f) (Ban on Brand Name Merchandise) issues.

The Camel Signature Blends are advertised and sold in packaging with ornate graphical images that resemble those of some Camel Artist Packs, thus raising similar Section III(b) and (f) concerns discussed above. The Signature Blends are flavored cigarettes, although their names and advertising do not identify the particular flavors they contain. (In a 2006 settlement agreement, RJR agreed not to market cigarettes with names or advertising that refer to flavors.) The promotion is of further concern to the extent it entices individuals to RJR’s interactive website, which invites visitors to vote for their favorite Signature Blends and to participate in other online games and promotions that would appear to appeal to youth and very young adults. Despite the website being theoretically inaccessible to minors, this campaign, and the cigarette blends themselves – distinct flavors blended in one cigarette – are problematic under Section III(a)’s Prohibition on Youth Targeting, given that many youths’ initiation to smoking is through flavored cigarettes.

The “Farm” campaign is a clever collection of multimedia advertising material using independent rock bands and their music to promote Camel cigarettes. Despite RJR’s Section III(l) obligation to “clearly and regularly communicate to its employees . . . its commitment to assist in the reduction of Youth use of Tobacco Products,” and despite the explicit Ban on Cartoon Use in Section III(b) of the MSA, the campaign uses various images, some considered by States to be cartoons as defined by the MSA, relating to farms and music. These images have been repeatedly used, produced and disseminated since 2006 in posters, newspaper advertisements, an RJR website and other media. The “Farm” cartoons have also been used on “Farm” CDs, and projected on the walls at various age-restricted musical events held across the U.S.

RJR’s most prominent use of cartoons in this campaign appeared in the publication of the November 15, 2007, 40th Anniversary Edition of Rolling Stone magazine, which contains a nine-page advertising spread filled with cartoon images. The spread consists of a four-page fold out or “gatefold” advertisement, which wraps around and opens to a complementary five-page fold out editorial cartoon poster. RJR’s advertisement includes minimal text and many images of whimsical and comically exaggerated animals and objects, the latter viewed by States as cartoons as defined by the MSA. This advertisement promotes RJR’s support of independent record labels (“Indie Rock Bands”) through online and live music events.

The editorial cartoon poster, enveloped by the “Farm” advertisement, is entitled “Indie Rock Universe,” and features an artist’s cartoon drawing depictions of Indie Rock Bands, many of whom are promoted by RJR’s Farm Rocks campaign. The poster is designed to look like doodles in a grade school student’s class notebook.

Additionally, RJR created a website for the “Farm” campaign that included both cartoon images of the type found in the Rolling Stone Magazine advertisement and content relating to the Rolling Stone Magazine editorial poster. Specifically, the pages in the (age-restricted) website listed Indie Rock labels and artists, including notice of their upcoming events. Fantastic and farm-themed images similar or identical to those in the Rolling Stone Magazine advertisement were scattered throughout the website pages.

The “Farm” campaign also issued two music compact discs (“CDs”) featuring RJR-supported Indie Rock bands. These CDs were distributed by RJR to select individuals on RJR’s mailing lists living in those states in which RJR was promoting live Indie Rock events. The CD packaging includes the same farm-themed images found in RJR’s print advertisement and website. Further, the packaging contains the Camel name, thus posing Section III(f) ban on Brand Name Merchandise concerns, in addition to the apparent violation of the Section III(b) ban on Cartoons.

Faced with such a serious violation of the prohibition against using cartoons in cigarette advertising, Connecticut, California, Illinois, Maryland, Maine, New York, Ohio, Pennsylvania and Washington, coordinated through the National Association of Attorneys General (NAAG), filed actions against RJR in December 2007. The cases are in various stages of litigation, and continue to be coordinated through NAAG.

While some may argue that these individual promotions are minor and harmless infractions, at best, these incidents raise more concerns as a group than they do individually because they appear to reflect a systematic targeting of youth through numerous campaigns, each catered to a distinct demographic group or aspect of youth culture, and a marketing philosophy that results in an unacceptably high level of exposure of youth to RJR’s product advertising.

Attorneys General have long recognized that youth access to tobacco products ranks among the nation’s most serious public health problems. More than 400,000 Americans die each year from diseases caused by tobacco use and studies show that more than 80 percent of adult smokers begin smoking before the age of 18. Research also indicates that every day in the United States, more than 2,000 people under the age of 18 start smoking – and that one-third of those persons ultimately will die from a tobacco-related disease. In addition, studies show that the earlier in life a person begins smoking, the more difficult it is for him or her to quit later in life.

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