Three years after anti-tobacco groups asked the FTC to ban Joe Camel as an unfair marketing ploy aimed at children, the commission last week voted 3-2 not to take action, according to health groups apprised of the vote.
That decision-still to be announced officially-won only muted applause from RJR, perhaps because the tobacco marketer knows further Joe Camel battles lie ahead. RJR again denied the campaign targets kids.
"We've been pretty candid that if [the FTC] looked at the facts, they too would conclude the allegations would not withstand scrutiny," said Peggy Carter, an RJR manager of corporate relations. "I don't foresee us making any [advertising] changes."
But another fight is likely once President Clinton appoints a successor to Deborah Owen (see story on next page). The Republican, whose term expires Sept. 25, is believed to have voted against banning Joe Camel.
"The FTC is temporarily closed, but that will change when Deborah Owen leaves," said Scott Ballin, chairman of the Coalition on Smoking OR Health, the group that initially asked the FTC to kill Joe Camel. "President Clinton ... needs to choose someone willing to protect the consumer."
Mr. Ballin said he expects other tobacco marketers might use cartoon characters in their campaigns, though Brown & Williamson Tobacco Corp. recently pulled the plug on a test Kool campaign featuring a cartoon penguin. The campaign from Campbell Mithun Esty, New York, failed to help the beleaguered brand.
Ms. Owen, along with fellow Republican Roscoe Starek and Mary Azcuenaga, an independent, are believed to have voted against issuing a complaint against RJR. Republican Chairman Janet Steiger and Democrat Dennis Yao are believed to to have favored action against Joe Camel.
Ms. Azcuenaga had vacillated for months on the matter, said FTC insiders. They said her principal doubts revolved around the broad question of how the commission might legally rein in the use of cartoon characters in ads.
"I think the FTC got a hold of the internal documents it wanted and found out that it couldn't make a case based on the company's intent," said an attorney familiar with the case. "Thus, they had to make a case based on the effects of the ads ... That would be pretty tough to defend on First Amendment grounds."
"This again shows ... how out of step the agency is with the rest of the Clinton administration," said Bruce Silverglade, legal affairs director at the Center for Science in the Public Interest. "The FTC's decision will fuel efforts to have Congress regulate tobacco advertising."
The prospect of intensified congressional interest looms very large on the tobacco horizon. Six weeks ago, Rep. Al Swift (D., Wash.), chairman of the House subcommittee overseeing the FTC, asked the commission for the evidence from its Joe Camel investigation. Whether that might lead to hearings by the House Energy & Commerce Committee's Subcommittee on Transportation & Hazardous Materials remains to be answered, but Rep. Mike Synar (D., Okla.), a leading tobacco foe, appears ready.
Rep. Synar, a longtime proponent of turning over all regulatory responsibility for tobacco and its advertising to the Food & Drug Administration, said he will announce this week a plan to strip the FTC of its tobacco jurisdiction.
If the FDA got jurisdiction over tobacco, "you would see Joe Camel eliminated," Rep. Synar said. "And we'd get out of the year-to-year legislative battles."
Rep. Swift retires at the end of this term, and Rep. Synar is among possible replacements as chairman of the House subcommittee with direct FTC oversight.
That sets up a nasty scenario for tobacco marketers, who would have to contend with anti-tobacco congressmen in charge of two key legislative panels. Rep. Henry Waxman (D., Calif.) chairs the House Energy & Commerce Committee's Subcommittee on Health & Environment.
Given those omens, there's no expectation of a lull in the tobacco wars.
"I don't think it will energize the debate any more than it was already," said Dan Jaffe, exec VP at the Association of National Advertisers. "Tobacco was already under serious attack, and this won't diminish it."