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Norman Blumenthal has no love for Joe Camel, the Marlboro Man or any other advertising icon that once made smoking seem cool and part of a desirable lifestyle. That’s because the La Jolla lawyer believes those ads weren’t aimed at free-thinking adults, but rather at impressionable youngsters eager to be popular and fit in with the crowd: Joe Camel was just bait for a lifetime addiction. On Wednesday, Blumenthal goes before the California Supreme Court to argue that he should be allowed to proceed with a class action claiming four tobacco manufacturers violated the state’s unfair competition law by targeting teens with deceptive ads. Lower courts haven’t ruled on the merits of Blumenthal’s claims yet, holding instead that federal law pre-empts the state statute. Blumenthal, a partner in Blumenthal & Markham, has high hope of persuading the Supreme Court to reverse. A loss, he maintains, would give tobacco manufacturers free rein to do whatever they want. “It [would be] open season on the kids,” he said recently. “If we lose here, there’s no reason Shrek can’t be seen in children’s magazines encouraging minors to smoke.” Daniel Collins, a partner at Los Angeles’ Munger, Tolles & Olson who will argue the case for the tobacco companies, didn’t respond to requests for comment. But in his court papers, he points out that the trial court judge found no evidence of any company ads that “expressly or directly” encouraged minors to purchase tobacco. “The court of appeal agreed,” Collins stated, “concluding that the requisite scienter could not be established simply by showing that [the tobacco manufacturers] ‘were generally aware their advertisements and promotional activities would encourage some minors to illegally purchase cigarettes.’” Blumenthal filed the class action against R.J. Reynolds Tobacco Co., Philip Morris Inc., Lorillard Tobacco Co. and Brown & Williamson Tobacco Corp. on behalf of California residents younger than 18 who smoked cigarettes between April 2, 1994, and Dec. 31, 1999. He dubbed the plaintiffs the “Joe Camel generation” because they came of age when R.J. Reynolds’ “Smoking Joe Campaign” was at its height. Blumenthal contends that the Joe Camel ads, featuring a seductive � and some would say blatantly sexual � camel smoking Camel cigarettes, were part of a tobacco industry “youth brand strategy” aimed at enticing minors to smoke. He says the same about Philip Morris’ sexy cowboys selling Marlboros, Lorillard’s marketing Newports with an “Alive with Pleasure” campaign and Brown & Williamson’s “B-Kool” ads for Kools. The tobacco companies’ market research, Blumenthal argues in court documents, revealed consumers “were unlikely to begin smoking after they became adults, and that those who began smoking as minors were notoriously brand loyal.” He claims the companies got rich off deceit. Nonetheless, San Diego County Superior Court Judge Ronald Prager granted the companies summary judgment after finding the class action was pre-empted by the Federal Cigarette Labeling and Advertising Act. San Diego’s Fourth District Court of Appeal affirmed in 2004. “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.” The Fourth District based the ruling on its interpretation of the U.S. Supreme Court’s 2001 ruling in Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, which blocked the state of Massachusetts from banning outdoor cigarette ads near schools. In his court papers, Collins, who directly represents Philip Morris, argues that Reilly makes it clear that state attempts to regulate advertisements in magazines with national circulation are exactly what the Federal Cigarette Labeling and Advertising Act was meant to pre-empt. “Even the dissenters in Reilly (who otherwise took a more narrow view of pre-emption),” he wrote, “recognized that state-by-state regulation of such advertisements was one of the core problems sought to be avoided by FCLAA’s pre-emption provision.” Collins’ brief was signed by attorneys representing the three other manufacturers. Blumenthal responded in court documents by arguing that the appellate court in this case shouldn’t have relied on Reilly, but rather the California Supreme Court’s 1994 ruling in Mangini v. R.J. Reynolds Tobacco Co., 7 Cal.4th 1057. While Reilly dealt with an attempt to ban cigarette advertising out of concern over youngsters smoking, he said, Mangini simply dealt with tobacco companies violating the state’s unfair competition law to gain an advantage over competitors. Blumenthal said what he wants to accomplish with the class action in the case before the California Supreme Court is to ensure tobacco companies act with honor, and give back what they took through alleged fraud. “The certified class of victims in this case was injured � not by smoking cigarettes � but by the unfair and illegal business practices of [the manufacturers],” he wrote. “Also injured were the businesses competing for these consumers’ dollars who competed fairly and honestly.” In a telephone interview, Blumenthal said his clients aren’t asking for an injunction in part because doing so would risk problems with FCLAA preclusion and commercial speech protections. “All we’re seeking is disgorgement and restitution for the monies paid by our class members,” he said. “In fact, about 50 percent of our class members no longer smoke and there are no health issues. They just want their money back.” Blumenthal is backed by the state attorney general, who filed an amicus curiae brief in the case. The tobacco manufacturers have the amici support of the Washington Legal Foundation, the Civil Justice Association of California, the American Advertising Federation, the Association of National Advertisers Inc. and the Product Liability Advisory Council Inc. The case is In re Tobacco Cases II, S129522. It is distinctly different from In re Tobacco II Cases, S147345. In that case, now pending before the California Supreme Court, a class of California smokers sued four tobacco manufacturers and two tobacco research groups for allegedly marketing cigarettes as safe and non-addictive. San Diego’s Judge Prager decertified that class after the 2004 passage of Proposition 64, accepting the tobacco industry’s argument that the initiative requires all class members to show injury and that they relied on the false advertising at issue. The Fourth District affirmed last year.

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