Commonwealth Ex Rel. Fisher v. Philip Morris, Inc.

4 A.3d 749, 2010 Pa. Commw. LEXIS 452
CourtCommonwealth Court of Pennsylvania
DecidedAugust 17, 2010
StatusPublished
Cited by14 cases

This text of 4 A.3d 749 (Commonwealth Ex Rel. Fisher v. Philip Morris, Inc.) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth Ex Rel. Fisher v. Philip Morris, Inc., 4 A.3d 749, 2010 Pa. Commw. LEXIS 452 (Pa. Ct. App. 2010).

Opinions

[752]*752OPINION BY

Judge PELLEGRINI.

R.J. Reynolds Tobacco Company (Reynolds) appeals from an order of the Court of Common Pleas for Philadelphia County (trial court) finding it violated the Tobacco Master Settlement Agreement and was in contempt of court for violation of the Consent Decree because it used cartoons in the promotion and advertising of its tobacco products. Because the trial court erred in determining Reynolds was liable for a third-party’s use of cartoons in an independently produced editorial and that Reynolds’ own advertisements included cartoons, we reverse.

In 1997, the Commonwealth of Pennsylvania commenced suit against several major tobacco manufacturers, including Reynolds, as part of a nationwide litigation strategy to, inter alia, recover medical expenses resulting from tobacco-related diseases and halt the marketing of tobacco products to minors. In November of 1998, the Commonwealth and 45 other states entered into a Master Settlement Agreement (MSA) and Consent Decree with Reynolds which prohibited the manufacturer from “using or causing to be used within the Commonwealth of Pennsylvania any Cartoon in the advertising, promoting, packaging or labeling of Tobacco Products.” (Consent Decree § V(B)). The MSA defined “Cartoon” as follows:

“Cartoon” means any drawing or other depiction of an object, person, animal, creature or other similar caricature that satisfies any of the following criteria:
(1) the use of comically exaggerated features;
(2) the attribution of human characteristics to animals, plants or other objects, or the similar use of anthropomorphic technique; or
(3) the attribution of unnatural or extra-human abilities, such as imperviousness to pain or injury, X-ray vision, tunneling at very high speeds or transformation. The term “Cartoon” includes “Joe Camel.”

(MSA § 11(D).

Beginning in 2007, while still subject to the MSA and Consent Decree, Reynolds engaged in an advertising campaign known as the Camel Farm which sought to promote independent rock music and record labels in connection with its Camel® cigarette brand. The Camel Farm campaign used an agricultural theme which depicted the growth and nurturance of independent music rising from the underground. The campaign included a multi-page butterfly or barn door gatefold advertisement1 in Rolling Stone magazine’s 40th Anniversary issue published on November 15, 2007.2 The gatefold was spread out over nine pages with Camel Farm ads on pages one, three, four and nine and a Rolling Stone [753]*753editorial entitled “Indie Rock Universe” covering pages two and five through eight. The latter pages were wrapped in the gatefold Camel Farm ad.

The Camel Farm advertisements consist of actual photographs of plants, birds, farm animals, farm equipment, televisions, speakers and radios arranged in a retro-styled collage. While most of the images are typical photographs, the ad does contain an image of a radio with a propeller flying through the air and several radios, televisions and speakers perched on stems as if growing out of the ground. It also contains printed type explaining the Camel Farm concept, the Camel® logo, and mandatory Surgeon General’s Warnings. The Rolling Stone editorial, on the other hand, consists of hand-drawn illustrations of rockets, alien creatures, robots, a planet with a mouth and arms, a kilted headless man with bagpipes protruding from his side, and a rocket-powered guitar. While the parties disagree as to whether the images in Reynolds’ Camel Farm ad constitute cartoons under the MSA definition, they agree that many of the Rolling Stone editorial images clearly meet the MSA definition of cartoons.

After the magazine was published, the Commonwealth filed a Motion to Enforce the Consent Decree with the trial court and sought monetary sanctions arguing that the images in the Camel Farm ads constituted cartoons and that Reynolds was liable for the cartoons contained within the adjacent Rolling Stone editorial. Eight other states which signed the MSA instituted similar lawsuits.3 Reynolds ar[754]*754gued that the images in its advertisements were not cartoons and the pages which did contain cartoons were editorial content of Rolling Stone unconnected to the Camel Farm ads for which Reynolds bore no responsibility.

The trial court rejected Reynolds’ arguments, found that any reasonable person viewing the images would conclude they were or included cartoons, and found Reynolds in breach of the MSA and in civil contempt for violating the Consent Decree. The trial court failed to specify which images in the Camel Farm ad it found to be prohibited cartoons or which prong of the definition the images violated. It merely stated “we know a cartoon when we see it,” that any reasonable person would consider the images cartoons, and that the interpretation of the definition offered by Reynolds’ witnesses failed to “capture the diversity that is the cartoon in American culture.” (Trial Opinion at 2). The trial court also found Reynolds liable on the basis of the editorial content because the entire nine-page gatefold “clearly formed an integrated whole, with common elements and themes, and would have been understood as such by any reasonable consumer.” (Trial Opinion at 9). It also noted that Reynolds “had the ability and the duty to avoid such indivisible commingling of its tobacco advertising and promotions with such indisputable cartoons.” (Trial Opinion at 2). In support of this conclusion, the trial court noted that Reynolds specifically requested that the editorial content and its advertisement shared the common theme of independent rock music; Reynolds never advised Rolling Stone of the cartoon ban; and it knew or should have known that cartoons were a frequent element in the magazine’s advertising and editorial content. It imposed compensatory damages “in an amount equal to a full page, youth-oriented, anti-smoking advertisement, to run in all copies of a single issue of Rolling Stone magazine circulated in Pennsylvania, whether by subscription or single copy sales.” (Trial Opinion at 12). It also imposed a coercive sanction in the amount of $302,095.95 — the total amount Reynolds paid Rolling Stone for the nationally-run gatefold ad — which could be purged by publication of the foregoing anti-smoking advertisement within a year of the court’s decision. Reasonable counsel fees and costs were also awarded to the Commonwealth. Reynolds then appealed to this Court.4

As a preliminary matter, Reynolds argues that the trial court erred in finding that it violated the MSA when the Commonwealth never alleged such a violation. In its Answer to Reynolds’ Motion to Strike, the Commonwealth made it clear that its initial Motion to Enforce was brought solely under the Consent Decree, stating:

[T]o the extent that Reynolds is suggesting that the Commonwealth was moving [755]*755pursuant to the Master Settlement Agreement (hereinafter “MSA”) in addition to the Consent Decree that premise is incorrect. As the text of the Commonwealth’s Motion makes clear, the motion is filed solely pursuant to the Consent Decree.

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Commonwealth Ex Rel. Fisher v. Philip Morris, Inc.
4 A.3d 749 (Commonwealth Court of Pennsylvania, 2010)

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4 A.3d 749, 2010 Pa. Commw. LEXIS 452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-ex-rel-fisher-v-philip-morris-inc-pacommwct-2010.