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Joe Camel may be long gone, but the so-called “Joe Camel Generation” lives on, and could be headed toward a court collision with Joe’s creators. The California Supreme Court agreed Wednesday to decide whether four tobacco companies — including Joe Camel progenitor R.J. Reynolds Tobacco Co. — can be sued under the state’s unfair competition law for allegedly targeting teens with provocative and deceptive cigarette ads. The court also took cases that will let it decide whether police without warrants are allowed to proceed beyond a dwelling’s door ( People v. Thompson, S130174), and to establish proper procedures in DNA sampling at crime scenes ( People v. Wilson, S130157). The smoking suit was filed as a class action on behalf of all California residents younger than 18 who smoked one or more cigarettes between April 2, 1994, and Dec. 31, 1999 — what the plaintiff lawyers call the “Joe Camel Generation.” The suit alleges that during this time each company had its “youth brand strategy,” with R.J. Reynolds selling Camels with its “Smoking Joe Camel” campaign, Philip Morris Inc. using range-riding cowboys to sell Marlboros, Lorillard Tobacco Co. marketing Newports with its “Alive with Pleasure” ads, and Brown & Williamson Tobacco Corp. selling Kools with its “B-Kool” campaign. The cigarette makers allegedly targeted “Rebels,” “Edge Kids,” “Punkers,” “Rockers” and “Skaters.” San Diego’s Fourth District Court of Appeal in October affirmed a trial court’s summary judgment for the companies, holding that the class action was pre-empted by the Federal Cigarette Labeling and Advertising Act. “We simply conclude,” Justice Alex McDonald wrote, “that under the FCLAA, Congress has given the [Federal Trade Commission] the exclusive authority to address society’s concern about smoking and health by regulation of cigarette advertising and promotion.” In petitioning for review, the attorneys for the class argued that the appellate ruling directly conflicts with the state Supreme Court’s 1994 ruling in Mangini v. R.J. Reynolds Tobacco, 7 Cal.4th 1058. The Fourth District’s decision “erroneously precludes enforcement of the UCL, a law of general application, to advertising which intentionally targets minors to smoke,” Norman Blumenthal, a partner in La Jolla’s Blumenthal & Markham, wrote. “As a result, law enforcement efforts will be seriously hampered, and children in California will no longer be protected from attempts by companies to target them to smoke.” The effectiveness of marketing campaigns allegedly aimed at youths is underscored by the fact, Blumenthal claims, that two tobacco companies, American Tobacco and Liggett, went out of business as a direct result of abiding by agreements not to advertise to youngsters. In reply, the tobacco companies’ lawyers argued that the Fourth District ruling completely complies with the U.S. Supreme Court’s 2001 decision in Lorillard Tobacco v. Reilly, 533 U.S. 525. “In Reilly, the court resolved a then-existing split of authority among the lower courts (including this court),” they wrote, “and squarely held that state-law regulation of cigarette advertising based on a ‘concern about minors and cigarette advertising’ was pre-empted under the ‘comprehensive federal scheme’ created by the Federal Cigarette Labeling and Advertising Act.” The lawyers — from six major law firms, including Los Angeles’ Munger, Tolles & Olson and San Francisco’s Howard, Rice, Nemerovski, Canady, Falk & Rabkin — also said the defendants in the current case had never expressly nor directly encouraged minors to purchase tobacco. In a telephone message on Wednesday, Blumenthal called the court’s decision to review “significant.” “Our position,” he said, “is that Congress never intended to pass a law, nor did they pass a law, that allows the tobacco companies to intentionally target minors to smoke through their ads and promotions.” The case is In re Tobacco Cases II, JCCP 4042, S129522.

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