FTC CRACKS DOWN ON JOE CAMEL,
HELPS LEAD HIM TO RETIREMENT
On May 28, 1997, the Federal Trade Commission formally charged R.J. Reynolds Tobacco Co. with an unfair practice by using the "Joe Camel" campaign to pitch Camel cigarettes at children. The Commission, by a 3 to 2 vote, called on an administrative law judge to issue a cease and desist order to prevent R.J. Reynolds from using the cartoon character in ways that "would have a substantial appeal to children and adolescents below the age of 18."
While pundits and others have decried the FTC's action as an "assault" against Joe Camel and, by implication, the First Amendment to the U.S. Constitution, the FTC's law enforcement action is on solid legal ground, according to Harvard constitutional law professor Laurence H. Tribe. Professor Tribe told the Los Angeles Times that the "Supreme Court's decisions about promoting the sale of products through advertisements make clear that although commercial speech is protected by the First Amendment, that protection does not include the right to promote a service or product that is illegal for those to whom it is promoted, or in a way that is deceptive. Here, the FTC has accumulated a powerful record to support the proposition that the Joe Camel campaign is intentionally designed to induce the illegal purchase of cigarettes by minors. To the extent that the record supports that conclusion, the FTC is not trampling on the First Amendment in the least."
Even stalwarts of the advertising industry have called on R.J. Reynolds to end the Joe Camel campaign. In an editorial following the FTC's action, Advertising Age called Joe Camel "a legal and ethical headache for the ad business that won't go away." The editorial went on to note that "Joe is still bad news for the ad business. He crossed an invisible line about what is acceptable in selling a legal _ but controversial, dangerous and addictive product.But there's nothing to gain in fighting on for Joe. Even if he beats the rap at FTC, he will be `guilty' in the eyes of the public. Joe was a great ad idea, but a terrible choice to represent a product that supposedly is for grown-ups only. It will be a gift to the rest of the ad business if RJR calls off the lawyers and brings Joe to a well-deserved, and long overdue, end."
However, on June 17, RJR made it clear that it has no intention of putting Joe Camel to rest. On that day, it filed a federal lawsuit against the FTC, alleging that the commission did not follow proper procedures and instead engaged in politically motivated "harassment." The suit, filed in the U.S. District Court for the Middle District of North Carolina, was filed even though the U.S. Supreme Court ruled in a 1980 oil-company case that lawsuits seeking to block administrative proceedings are "improper." At least two companies have sued the FTC and lost since that ruling, FTC lawyers told the Wall Street Journal.
In its action against Joe Camel, the FTC noted that the campaign had led to an upsurge in Camel's share of the illegal children's market from less than 3% in 1987 when the campaign started, to 13.2% by 1993. This is why the FTC has taken its law enforcement action. This is also why U.S. Rep. Tim Roemer (D-IN) called the FTC's action against Joe Camel "a victory for our nation's children."
On July 10, RJR reversed itself and announced that the infamous Joe Camel campaign would be put to rest, replaced by a new campaign entitled "What You're Looking For." These new Camel ads feature a young woman with lipstick-coated lips, looking over the rim of a martini glass; she is accompanied by a camel-shaped outline in the background. While Maura Ellis, an RJR spokeswoman, said that the new campaign "appeals to smokers of the `90s and the year 2000," it is clear that it also targets adolescent males below the age of 18.
Bruce Reed, President Clinton's chief domestic policy advisor, welcomed the demise of Joe Camel, noting that "[h]e had it coming." Vice President Al Gore called the decision "a step in the right direction, but there's still more to do. The President and I will not quit until all of the marketing and advertising aimed at young people is stopped." Officials at the FTC indicated that their case against Joe Camel would still be pursued because they want RJR to pay for a program to dissuade youngsters from smoking and to provide regular reports on the company's share of the illegal teen market.
-Edward L. Sweda, Jr.
Senior Attorney, TCRC