Published January 14, 2015
Is the Marlboro Man really a kid at heart?
Government lawyers claim the tobacco industry (search) has been using the classic advertising symbol and others like him to appeal to children. Cigarette companies say they're only trying to attract adult smokers (search).
The dispute is the focus of a civil racketeering trial now in its third month. The government is seeking $280 billion — a record amount for such a case.
U.S. District Judge Gladys Kessler, (search) who is presiding over the bench trial, scheduled a two-week break beginning Friday. The trial will resume Jan. 6.
The Justice Department contends the industry engaged in a five-decade conspiracy to deceive the public about the health hazards of cigarettes. To win, the government must show the industry acted improperly in the past and is still acting fraudulently or is likely to do so in the future.
Though it's illegal to sell cigarettes to anyone under 18 in all states, with some requiring teens to be 19, teens younger than that still manage to buy cigarettes or get others to do it for them.
Government lawyers say cigarette companies know that and seek to attract children to their brands by using ads that portray smoking as attractive, sophisticated and rebellious — appealing features for kids — and placing them in magazines popular with young people.
The Campaign for Tobacco-Free Kids estimates 22 percent of high schoolers smoke.
Justice lawyers, who have declined to speak publicly about the case outside court, have produced documents showing the industry has tracked youth smoking over the years. One internal Philip Morris document from 1975 discussed young people's allowances and how that might affect cigarette sales.
"There is also some evidence, chiefly anecdotal to be sure, that parents are reducing the allowances they give to their teenage children," the document states. "This could also cut into Marlboro sales."
Industry lawyers say identifying who smokes is not the same as marketing to those age groups. "That is called tracking," Philip Morris (search) attorney Dan Webb said. "That doesn't mean that we're then planning an advertising campaign around it."
The government has produced several witnesses who testified that tobacco companies market to kids.
University of Georgia marketing expert Dean Krugman testified that Philip Morris USA — the nation's largest cigarette company — has used cowboys and other Western themes reflecting independence to attract minors.
Webb denied that kids were the target audience.
"Those themes clearly resonate strongly with people of legal smoking age," Webb said. "The fact that underage people might be drawn to the same type of advertisements that appeal to the legal market is a collateral consequence, but it's not intentional conduct."
Philip Morris still uses some cowboy imagery to sell Marlboro — the world's top-selling brand — but the company decided a few years ago to stop using the classic close-up shots of the ruggedly handsome cowboy smoking a cigarette.
The government also has accused Reynolds American Inc. of using its old Joe Camel cartoon to get children to smoke. The mascot was introduced in the late 1980s and was the centerpiece of Reynolds' marketing campaign until the company retired it in 1997.
In 1998, the tobacco industry reached legal settlements with all the states over health care costs. The $246 billion settlements banned cartoon characters like Joe Camel and billboard and transit ads, among other things.
Krugman of the University of Georgia testified that Joe Camel (search) was widely recognized by children and that they described him as "cool" or "suave."
Reynolds lawyer Robert McDermott said the Federal Trade Commission investigated and declined to take legal action against the company in the early 1990s for Joe Camel's alleged effect on youth smoking. The agency later did file a complaint against the company but dropped it when cartoon characters were banned as part of the 1998 settlements.
Besides ads, Justice lawyers say tobacco companies increasingly use discounts to peddle products to kids.
University of Illinois economist Frank Chaloupka said teens are more likely than adult smokers to make a purchasing decision based on pricing. However, under cross examination, he said he could not interpret whether the discounts have been part of a deliberate effort to woo minors.
Webb argued that youth smokers aren't especially price sensitive. He cited government studies showing underage smokers overwhelmingly choose expensive brands such as Marlboro, Newport and Camel.
The defendants in the lawsuit are: Philip Morris USA Inc. and its parent, Altria Group Inc.; R.J. Reynolds Tobacco Co.; Brown & Williamson Tobacco Co.; British American Tobacco Ltd.; Lorillard Tobacco Co.; Liggett Group Inc.; Counsel for Tobacco Research-U.S.A.; and the Tobacco Institute.