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The Federal Trade Commission is resting its unfairness case against R.J. Reynolds Tobacco Co.'s Joe Camel advertising on an argument that could be difficult to prove: that the ad campaign targeted children under 18, reached them, then successfully changed their smoking behavior, perhaps keeping some kids smoking who otherwise would have quit.

By a 3-2 vote, the commission brought its complaint against RJR last week, as expected (AA, May 26). The action means that the suit will be brought before an administrative law judge and later, most likely, a federal judge scrutinizing the hearing record.


The commission is asking for the cartoon character to be banned from all marketing materials except those displayed in adult venues, such as bars.

"What we have said is it caused or was likely to cause underage consumers to smoke," said Jodie Bernstein, director of the FTC's Bureau of Consumer Protection. "We believe that the ad campaign was not the sole cause, but it contributed to the decision to initiate smoking or continue to smoke."

Despite Joe's status as the lightning rod for accusations that tobacco marketers target kids, lawyers familiar with FTC rules and advertising law say the commission will be under pressure to provide sufficient evidence.

"Probably the outcome will be determined by what test is applied," said Barry Cutler, former director of FTC's Bureau of Consumer Protection and now a lawyer in private practice. "If the commission has to show that individuals started smoking because of RJR's marketing, it will be an impossible burden. On the other hand, if the court is willing to draw inferences from the entire factual record, that advertising played a role . . . the result will be quite different."

RJR's response last week to the vote demonstrated some of the difficulties ahead. The company not only again denied vigorously that Joe targets people under 18 but announced a new study disputing a central contention of the FTC's case-that the ads cause more kids under 18 to smoke Camels.


According to the study, done for RJR by Audits & Surveys Worldwide, only 3.1% of respondents under age 18 who smoked cigarettes smoke Camels, a drop in recent years rather than an increase.

While generally declining to disclose the new evidence on which it was basing its case, FTC said one factor was a rise in Camel smoking among those under 18. It cited figures indicating that Camel's market share increased from 3% before 1987 to 8.9% in 1987 and 13% in 1993.

Three years after commissioners-also in a 3-2 vote-said there wasn't enough evidence to take on Joe Camel, the new majority of Chairman Robert Pitofsky and commissioners Janet Steiger and Christine Varney said the evidence was now sufficient to act.

"The campaign uses a cartoon character pictured in settings like a beach or rock concert, and featured on specialty items that have a substantial appeal to children," said Ms. Bernstein.

"The commission's complaint alleges that this campaign was used to promote an addictive and dangerous product to children and adolescents under 18, and this practice is illegal," she said.


The hearing process could take nearly a year, and FTC asked that at its conclusion the hearing officer force RJR to "cease and desist" from using Joe and fund a 10-year public education campaign.

Ad agency Mezzina/Brown, New York, which handles Camel, wasn't mentioned in the complaint, but Ms. Bernstein said it is not uncommon for ad agencies to be named later.

The two FTC commissioners remaining from the earlier majority, Mary Azcuenaga and Roscoe Starek III, both said not much had changed and there still wasn't sufficient evidence (see story at left). Mr. Starek also questioned the commission spending scarce resources taking on RJR now when liability talks between tobacco companies and attorneys general would eliminate the advertising.

Ms. Bernstein, however, said the results of the liability talks are far from certain.

She cited not only evidence gathered in the old review but new evidence for the decision, though she declined to disclose that new evidence.

RJR denied the charges and called the FTC action "unprecedented, unfounded and unwarranted."

Its statement said: "There is no factual basis on which to found this suit. Joe Camel has become the government's scapegoat for issues our society has been unable to resolve."


The company declined to say why it would fight the FTC action against the Old Joe character and at the same time offer to abandon such advertising in discussions with state attorneys generals about liability.

Bill Brown, president of Mezzina/Brown, questioned the reliability of research indicating more underage kids are smoking Camels and also disputed the blaming of advertising for societal problems.

"Do you really believe that an ad causes somebody to do something? I don't and I have been in this business for 20 years," he said. "We live in an environment where fewer and fewer people are responsible for their own actions. I am not talking about children but the adults who are making these kind of charges" about the reason people smoke.

Another lawyer familiar with advertising law, who declined to be identified, said the commission's action was "very significant" though for a slightly different reason.


"The question of target marketing is clearly on the table. The question is the incidental effect," he said, indicating advertisers may have to be very careful about advertising aimed at one age group that reaches others.

Ad groups, while not taking sides, were pleased that after fighting tobacco battles at the Food & Drug Administration, the issue of the advertising of tobacco products was finally before the FTC.

"It's the right forum to decide this issue," said Wally Snyder, president of the American Advertising Federation. "The agency has the ultimate authority to regulate national advertising under a standard set by Congress and we have to live by the decisions that come down."

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