Mr. C. R. Hostutler
Office of the Chief Clerk
Commonwealth Court of Pennsylvania
Room 624, sixth Floor
South Office Building
Harrisburg, PA 17120
re: Robert B. Sklaroff, MD v. D. Michael Fisher
Dear. Mr. Hostutler:
Enclosed, please find an original and one copy of the above-captioned new matter. The original has an “O” in the upper-left-hand corner of the first page.
Please date-stamp the extra copy of the cover-page and return it to myself in the stamped, self-addressed envelope; these documents are paper-clipped to this cover-letter.
Enclosed is the $35 filing fee.
[As per the suggestion of the filing-office, I have placed tape over the staples.]
Thank you for your assistance in this matter.
Sincerely,
*
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
ROBERT B. SKLAROFF, M.D.
Plaintiff
v.
D. MICHAEL FISHER, ESQUIRE,
IN HIS OFFICIAL CAPACITY
AS ATTORNEY GENERAL,
COMMONWEALTH OF
PENNSYLVANIA,
Defendant
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ORDER
AND NOW, this ---___ day of ----__________, the Attorney General of
the Commonwealth of Pennsylvania is ordered to initiate a full investigation
of the advertising and marketing practices that have been conducted and
continue to be conducted by Philip Morris, Inc. since November 23, 1998.
_________________
J.
To: All parties
You are hereby notified to file a written response
to the following Complaint within thirty (30) days
from service hereof or a judgment may be entered against you.
To: All non-respondent parties
If you intend to participate in this proceeding in the Commonwealth
Court,
you must serve and file a notice of or application for intervention
under Rule 1531
of the Pennsylvania Rules of Appellate Procedure within thirty (30)
days.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
ROBERT B. SKLAROFF, M.D.
Plaintiff
v.
D. MICHAEL FISHER, ESQUIRE,
IN HIS OFFICIAL CAPACITY
AS ATTORNEY GENERAL,
COMMONWEALTH OF
PENNSYLVANIA,
Defendant
Complaint
Docket No.
COMPLAINT OF ROBERT B. SKLAROFF, MD
Robert B. Sklaroff, MD
Suite #130
50 East Township Line Road
Elkins Park, PA 19027-2253
(215) 663-8200
FAX: (215) 663-8388
rsklaroff@home.com
http://members.home.net/rsklaroff/homepage.html
Pro Se
Complaintant, Robert Sklaroff, M.D., respectfully requests Commonwealth
Court to enjoin D. Michael Fisher—Attorney General of the Commonwealth
of Pennsylvania— to investigate the conduct of Philip Morris, Inc.,
and he avers in support thereof:
1. This Complaint involves the implementation of the Master Settlement
Agreement [“MSA”] signed on November 23, 1998 between the Tobacco Industry
[“TI”] and the Commonwealth of Pennsylvania [“CoP”]; the Attorney General
[“AG”] has failed to ensure certain clauses thereof have been enforced,
despite the fact that he has been informed (as has the perpetrator named
herein) of alleged violations thereof by Philip Morris, Inc. [“PM”] both
in May and in December of 1999.
2. The alleged violations of the MSA involve three distinct facets of the MSA: billboard advertising, youth advertising and youth access to free cigarettes; thus, both individually and in the aggregate, PM has allegedly demonstrated a pattern of behavior (with national implications) that the AG has refused to investigate.
3. Two other MSA-related cases filed by Dr. Sklaroff are pending, one
dealing with the MSA itself (that is before the PA Supreme Court), and
another dealing with the billboard advertising issue (that is before both
the First Judicial District—Philadelphia—Court of Common Pleas and Commonwealth
Court); these filings are mutually exclusive from the instant matter, although
the billboard advertising (Wawa) case and this case demonstrate that Dr.
Sklaroff has a number of active legally enforceable interests directly
derivative from the disposition of the MSA.
JURISDICTIONAL STATEMENT
4. This Court has original jurisdiction in this matter pursuant to 42
Pa.C.S.A. 761; subparagraph (a) provides a specific statement
[“The Commonwealth Court shall have original jurisdiction of all civil
actions or proceedings: (1) Against the Commonwealth, including any
officer thereof, acting in his official capacity.”] and subparagraph (b)
provides absolutely that this jurisdiction is exclusive except as provided
in section 721 relating to original jurisdiction of the Supreme Court.
PARTIES
5. Robert B. Sklaroff, MD is a physician (licensed in the CoP) and
medico-political activist (particularly with regard to tobacco control,
during the past two decades); as a medical oncologist, he harbors profound
concerns with the grave threat that endemic tobacco abuse poses to worldwide
public health.
6. Dr. Sklaroff is also a CoP resident and taxpayer; he was granted standing by the Commonwealth Court to challenge the CoP Insurance Commissioner’s decision to provide de facto approval of the consolidation of Pennsylvania Blue Shield and Blue Cross of Western Pennsylvania (by having approved both the bylaws of a new company, “Highmark, Inc.,” and the transfer of six subsidiaries thereto).
7. D. Michael Fisher, Esquire, is the CoP Attorney General; he had a
major role in the negotiation of the MSA both nationally as well as on
behalf of the CoP; yet, he has failed to enforce its tenets against PM,
the leading member of the TI.
THE MASTER SETTLEMENT AGREEMENT
8. The MSA was executed in the CoP on November 23, 1998 by the AG and
the TI; thus, certain of its tenets were made binding upon PM at various
times thereafter.
9. Some facets of the MSA’s “Permanent Relief” are to be effectuated only among Settling States; inasmuch as the MSA has not achieved state-specific finality in the CoP (due to Dr. Sklaroff’s pending petition to achieve “standing” therein), only those clauses triggered on November 23, 1998 can be invoked in the CoP.
10. Those that reflect the MSA’s intent in the CoP and that are applicable nationally (in the 80+ % of states that have now approved the MSA) include the following: “Prohibition on Youth Targeting. No Participating Manufacturer may take any action, directly or indirectly, to target Youth within any Settling State in the advertising, promotion or marketing of Tobacco Products, or take any action the primary purpose of which is to initiate, maintain or increase the incidence of Youth smoking within any Settling State.” {III (a)}
11. Those already triggered and now applicable in the CoP include the
following {These are also all excerpts from “III. Permanent Relief”
in the MSA.}:
“(d) Elimination of Outdoor Advertising and Transit Advertisements.
Each Participating Manufacturer shall discontinue Outdoor Advertising and
Transit Advertisements advertising Tobacco Products within the Settling
States as set forth herein.
“(1) Removal. Except as otherwise provided in this section,
each Participating Manufacturer shall remove from within the Settling States
within 150 days after the MSA Execution Date all of its (A) [outdoor] billboards
. . .advertising Tobacco Products. . . .
“(2) Prohibition on New Outdoor Advertising and Transit Advertisements.
No Participating Manufacturer may, after the MSA Execution Date, place
or cause to be placed any new Outdoor Advertising advertising Tobacco Products.
. .within any Settling State. . . .
“(g) Ban on Youth Access to Free Samples. After the MSA
Execution Date, no Participating Manufacturer may, within any Settling
State, distribute or cause to be distributed any free samples of Tobacco
Products except in an Adult-Only Facility. For purposes of this Agreement,
a “free sample” does not include a Tobacco Product that is provided to
an Adult in connection with (1) the purchase, exchange or redemption for
proof of purchase of any Tobacco Products . . .or (2) the conducting of
consumer testing or evaluation of Tobacco Products with persons who certify
that they are Adults.
“(h) -Ban on Gifts to Underage Persons Based on Proofs of Purchase.
Beginning one year after the MSA Execution Date, no Participating Manufacturer
may provide or cause to be provided to any person without sufficient proof
that such person is an Adult any item in exchange for the purchase of Tobacco
Products, or the furnishing of credits, proofs-of-purchase, or coupons
with respect to such a purchase.
“For purposes of the preceding sentence only, (1) a driver’s license
or other government-issued identification (or legible photocopy thereof),
the validity of which is certified by the person to whom the item is provided,
shall by itself be deemed to be a sufficient form of proof of age; and
(2) in the case of items provided (or to be redeemed) at retail establishments,
a Participating Manufacturer shall be entitled to rely on verification
of proof of age by the retailer, where such retailer is required to obtain
verification under applicable federal, state or local law.
“(i) Limitation on Third-Party Use of Brand-Names. After the
MSA Execution Date, no Participating Manufacturer may license or otherwise
expressly authorize any third party to use or advertise within any Settling
State any Grand Name in a manner prohibited by this Agreement if done by
such Participating Manufacturer. Each Participating Manufacturer shall,
within 10 days after the MSA Execution Date, designate a person (and provide
written notice to NAAG [National Association of Attorneys General] of such
designation) to whom the Attorney General of any Settling State may provide
written notice of any such third-party activity that would be prohibited
by this Agreement if done by such Participating Manufacturer itself.
Following such written notice, the Participating Manufacturer will promptly
take commercially reasonable steps against any such non-de minimis third-party
activity. . . .”
12. National State-Specific Finality was announced on November 12, 1999,
thereby triggering implementation of the MSA in the Settling States (but
not in the CoP).
VIOLATIONS OF THE MSA
13. Twice during the 1999 calendar year, Wawa Food Markets employed
billboard advertising to disseminate knowledge (indiscriminately, both
to adults and youth) of the availability of Marlboro cigarettes (a product
manufactured by PM) at a reduced price; each of these billboards exceeded
14 square-feet and thus would have been prohibited under the MSA were Philip
Morris to have posted them.
14. These billboards included the three words “Manufacturer Sponsored Promotion,” documenting the support PM gave to this campaign, but PM spokespeople both disavowed the capacity to take commercially reasonable steps to curtail this effort (such as noticing Wawa it could not employ its logo or cite the availability of the “number-one selling brand”) and failed to ensure this behavior would not recur.
15. The AG sought neither a fine for having engaged in prohibited behavior he had the responsibility to enforce nor a stipulated prohibition against future conduct; this dereliction of duty contrasted with the achievement of the Rhode Island AG when the United States Tobacco Company admitted to having violated the MSA [“Prohibition on Material Misrepresentation”] and inter alia was fined $15,000 and was forced to “publicize conclusions that smokeless tobacco can cause cancer.” {5/10/99 Press Release}
16. At least five other distributors/retailers have posted billboard advertisements that violate the MSA, not only in the CoP (Sheetz) but throughout the United States (California, New Mexico, Wyoming and Kentucky).
17. The PA-AG was aware of this conduct in May, 1999 {according to press reports} but did nothing (either at that time or since that time) to investigate whether PM was engaging in a pattern of misconduct (either in the CoP or in any other state).
18. After Wawa reinstituted its billboard advertising campaign, the PA-AG wrote a letter to that corporation accusing it of having “reneged” on its prior agreement; nevertheless, no effort was made to inquire as to the potential involvement of PM in this series of events, and the AG’s spokesperson averred that the matter was viewed as having been resolved once Wawa had again agreed to remove the ads.
19. In November, 1999, PM financed publication of a glossy-insert advertisement in a weekly newspaper [the City Paper] that is distributed for free in Philadelphia and is placed in public areas where youth can easily acquire it; the ad prominently depicted minority teenagers who were attractively dressed and accessorized (promoting sale of Salem cigarettes) who were moving “Fast. Forward.”
20. On September 29, 1999, PM financed distribution of an unsolicited
letter that offered free samples of Virginia Slims cigarettes merely following
provision of a signature and a Date-of-Birth, without the necessity to
provide any proof thereof.
21. On its Web-Site (in the form of a press release), Philip Morris
stated its corporate policy thusly [as quoted on December 19, 1999]:
“Philip Morris U.S.A. notes final approval of Master Settlement Agreement.
Encourages states to devote released funds to youth smoking prevention
initiatives. November 12, 1999 - Last year Philip Morris
USA and other major tobacco companies entered into a comprehensive settlement
with the Attorneys General of forty-six states and five territories. This
agreement fundamentally changes how tobacco is marketed, advertised and
promoted in the United States, while providing the states an opportunity
to fund programs to help reduce the incidence of youth smoking.
“ ‘The settlement agreement is proof that responsible people can find
areas of common agreement and work together in a constructive manner,’
said Ellen Merlo, Senior Vice President, Corporate Affairs for Philip Morris
USA.
“Most of the changes the agreement calls for, including the removal
of all billboard and transit advertising, have already been implemented,
and now funds from last year’ tobacco settlement will be released to states
that have given final approval to the agreement. These states are scheduled
to receive their first settlement payments shortly.
“State legislatures across the country have been actively debating
how to best spend their funds. In the spirit of the Master Settlement Agreement,
Philip Morris USA is actively supporting efforts to dedicate settlement
funds to youth smoking prevention efforts.
“ ‘We are pleased that the settlement funds will soon be on their way
to the states, many of which have already taken steps to fund comprehensive
programs to prevent youth smoking.’ said Merlo. ‘We hope that legislators
in each state will devote a significant portion of their settlement funds
to pay for a comprehensive state program to reduce the use of, and access
to, tobacco products by minors.’
“ ‘Our company believes the settlement provides an unprecedented opportunity
to design and implement programs that can have a positive impact on reducing
the incidence of youth smoking,’ said Merlo.
“Most experts agree that a comprehensive effort should include advertising
campaigns, educational programs in schools, community-based programs that
promote positive youth development, and enhanced access prevention and
enforcement efforts. Philip Morris USA hopes that a comprehensive state
plan will also provide for tracking of youth smoking incidence over the
years and will measure the effectiveness of youth smoking prevention programs.
“Philip Morris USA makes these recommendations in the spirit of cooperation
as the company enhances its own efforts to help prevent youth smoking.
In 1998, Philip Morris USA created a Youth Smoking Prevention department
whose sole goal is to develop and support programs to help reduce the incidence
of youth smoking. In 1999 and 2000, the Company has voluntarily devoted
more than $100 million each year to a substantive and long-term effort
that will combine Communication, Education, Community Action and Access
Prevention initiatives.
“ ‘Philip Morris USA is committed to taking responsible action on this issue, just as we are sincerely committed to full compliance to both the spirit and the letter of the Master Settlement Agreement,’ said Ellen Merlo. ‘To that end, we will continue to work with all those who are responsibly committed to achieving a measurable reduction in youth smoking.’ ”
22. The above corporate policy statement was consistent with the MSA’s mandate {III (l)}, in pertinent part: “Corporate Culture Commitments Related to Youth Access and Consumption. Beginning 180 days after the MSA Execution Date, each Participating Manufacturer shall (1) promulgate or reaffirm corporate principles that express and explain its commitment to comply with the provisions of this Agreement and the reduction of use of Tobacco Products by Youth, and clearly and regularly communicate to its employees and customers its commitment to assist in the reduction of Youth use of Tobacco Products.”
23. It is therefore averred that PM continues to advertise and market its Tobacco Products (Marlboro, Salem and Virginia Slims) both in the CoP and throughout the United States to Youth, in contravention of the MSA and its contemporaneous statement of corporate philosophy.
24. These [appended] data were submitted to the AG on December 3, 1999,
but he failed to act; it is therefore averred that he does not intend to
discern whether PM’s marketing practices violate the MSA, the enforcement
of which he covets.
RELIEF SOUGHT
25. Dr. Sklaroff respectfully requests this Court issue an Order mandating
the AG investigate the current advertising and marketing activities of
PM; in the alternative, Dr. Sklaroff respectfully requests this Court to
issue an Order that would afford him standing to pursue this investigation
(as a “private AG” or in any other capacity deemed appropriate).
Respectfully submitted,
Robert B. Sklaroff, MD
Suite #130
50 East Township Line Road
Elkins Park, PA 19027-2253
(215) 663-8200
FAX: (215) 663-8388
Pro Se
CERTIFICATE OF SERVICE
I, Robert B. Sklaroff, MD, hereby certify that on this date, the 20th day of December, 1999, I caused a true and correct copy of this document to be sent today, by First Class Mail, to Counsel at the addresses listed below:
D. Michael Fisher, Esquire
Attorney General
Commonwealth of Pennsylvania
16th floor
Strawberry Square
Harrisburg, PA 17120
Mary A. McLaughlin, Esquire
Dechert, Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793