Subject:
             Remember the Wawa Billboards? They're BAAACK! [part I]
        Date:
             Tue, 23 Nov 1999 05:10:44 -0800
       From:
             "Robert B. Sklaroff, MD" <rsklaroff@home.com>
 Organization:
             @Home Network
         To:
             Multiple recipients of list INTL-TOBACCO <intl-tobacco@essential.org>,
             Settlement Talk Discussion List <settlement-talk@smokescreen.org>
 
 

This memo will constitute an update on multiple meshing fronts.  It was
a great day, yesterday, for those hungry for vindication (read:  "moi")
and a difficult day for those who are eager to bury their mistakes
(read:  "Big Tobacco and Big Government").  The tremendous irony, here,
is that I was confronted 24 hours ago with the task of composing
responses to charges by the Attorney General and Philip Morris that the
Wawa Billboard issue (which constitutes my "legally enforceable
interest" in the MSA challenge) was moot.  [I must confess that this
prospect, increasingly, was experienced as more burdensome than
welcome.]  And along came a new, even-more-devious campaign that served
to prove I had been correct for the past half-year.  The timing could
NOT have been more exquisite!

First, know that I filed the "Motion to Reconsider/Reargue" before Judge
John W. Herron (as detailed in my prior e-mail), having hastily added
the following paragraph (at the end, prior to the valedictory paragraph)
prior to having done so:

"Illustrative of my concern is that, today, Wawa Food Markets just
initiated another tobacco billboard advertising campaign, inclusive of
the disclaimer that was previously employed ('manufacturer sponsored
promotion').  This documents the lack of mootness of this issue, and
shows why Dr. Sklaroff's prior filing was justified (and should have
been honored)."

Second, know that I will hand-deliver a whipped-up response to Philip
Morris' "Motion to Quash" to the Philly office of the PA Supreme Court
later today [I guess I should start typing it?], inasmuch as I don't
know how quickly the Court would adjudicate this venal effort to help it
avoid dealing with the central issues.

Third know that the following piece published on the front page (with a
picture) in today's Inquirer reflects, also, the content of an article
that we believe will also be published through the Associated Press.
Ultimately, this entire sequence of events dramatically illustrates how
DANGEROUS it is to suppress the rights of the citizenry to ensure the
public health is maintained.  This is the essence of my effort, and it
still would be desirable if others would stop "holding my coat" and
pitch-in to help!  That I've been able to sustain this work until the
"players" had revealed themselves is somewhat amazing (considering the
potency of the opposition and the need to fight a multi-front war on a
variety of levels, many shrouded by self-interested politicians).  IT IS
TIME FOR THE ANTI-TOBACCO ACTIVIST COMMUNITY to awaken from its nap, and
BECOME INVOLVED.  [please?]

Specifically, organizations and editorialists could endorse, and anyone
could file an amicus brief.

The document I will file will be entitled:  "REPLY TO COMMONWEALTH OF
PENNSYLVANIA'S MOTION TO DISMISS FOR MOOTNESS THE PETITION FOR REVIEW OF
APPELLANT, ROBERT B. SKLAROFF, MD AND REPLY TO
MEMORANDUM OF THE COMMONWEALTH OF PENNSYLVANIA IN SUPPORT OF MOTION TO
DISMISS AND RESPONSE TO PETITION FOR REVIEW OF ROBERT B.SKLAROFF, MD."
Although legal scholars may cringe, I don't feel there is sufficient
time to tease-out all its components (into affidavits, separate briefs,
etc.) or to chase-down all the legal references in the AG's filing.
Perhaps I will be able to file an amended document later, but I have
been advised that there is time-urgency to getting-out SOME sort of a
response ASAP.  Thus, critique is invited, and any delineation of a
fundamental defect will be honored.

*

http://www.phillynews.com/inquirer/99/Nov/23/front_page/TOBA23.htm

State looking into Wawa's cigarette ads The deal with tobacco firms
didn't include retailers. The Delco chain's billboards, and critics'
ire, are up anew.

By Glen Justice
INQUIRER HARRISBURG BUREAU
HARRISBURG - Earlier this year, major tobacco companies agreed to stop
advertising on billboards in a settlement with 46 states aimed at ending
health-related lawsuits. Retailers weren't part of the deal.

And so Wawa Inc., for the second time this year, is taking its low-price
message to the public. Billboards have recently appeared in downtown
Philadelphia, proclaiming:  "Lowest pack prices allowed by law. # 1
brand even lower!"

Antitobacco activists say the billboards violate the nationwide tobacco
settlement.

Yesterday, State Attorney General Mike Fisher - who is responsible for
enforcing the settlement in Pennsylvania - said he was looking into the
ad campaign.

Wawa officials, meanwhile, note that the billboards do not contain
tobacco-company symbols or logos and say their competitors are producing
similar ads.

"The settlement did not include retailers," Wawa spokeswoman Lori Bruce
said. "Therefore, billboard advertising by retailers is legal."

The $206 billion settlement prohibits, with few exceptions, the tobacco
companies from erecting billboard-style advertising. Statewide, tobacco
billboards came down in April and antismoking messages were unveiled.

The settlement also contains language that prohibits tobacco companies
from authorizing other companies to advertise their brands. It requires
tobacco companies to take "commercially reasonable steps" in the event
that a third party, such as a retailer, advertises brand-name
cigarettes.

But it does not specify what those steps should be.

"We'll take a look and our lawyers will look at [the settlement], and
we'll go from there," Sean Connolly, a Fisher spokesman, said. "I can't
tell you what action we will take."

In May, a Wawa billboard campaign touting Marlboros prompted Fisher to
negotiate with the company. Wawa voluntarily took down the ads. But it
announced a week ago that it was reinstating them - without specific
mention of any brand name.

The ads neither depict cigarettes nor contain the surgeon general's
warning. They do not even include the word cigarettes. Rather, they
contain the Wawa logo, a warning that Wawa does not sell tobacco to
minors, and a slogan promising the lowest prices on the leading brand.

Activists, however, say that everyone knows that the number-one brand is
Marlboro, manufactured by Philip Morris, and that the ads are nothing
but an end run around the settlement.

"This is incredibly devious," said Jeff Barg, chairman of the
Philadelphia-based Tobacco Free Education and Action Coalition for
Health. "They are trying to get away with promoting low-priced
Marlboros, but they don't say, 'Cigarettes,' they don't say,
'Marlboros.' It's indirect, but it's clearly there."

Officials of Wawa, a Delaware County-based convenience-store chain, did
not say how many billboards had been erected, but antitobacco activists
said two had been spotted, one on City Avenue, the other near 30th
Street Station.

When the May billboards touting Marlboros were pulled by Wawa, a company
release said that the ads had been "effective" but that "we have decided
to discontinue their use." The release claimed that Wawa had no legal
obligation to discontinue the ads but that they had "created confusion
in the marketplace."

Activists who protested the May billboards wanted Fisher to seek
sanctions against Philip Morris, rather than negotiate with Wawa. One
activist, Dr. Robert Sklaroff, filed suit in Philadelphia Common Pleas
Court, asking that the court sanction the cigarette maker. The suit was
thrown out last week.

Now, activists are again asking Fisher to address the matter, which they
call a "clear-cut violation" of the settlement.

"The fact that Wawa is doing this again indicates to me that he made a
mistake by not going for sanctions," Barg said.

Connolly, though, said that any violation had to be clear-cut and the
ads investigated. He said limits on retailer advertising are a "gray
area," unlike the language that applies to tobacco companies.

"We expected skirmishes over what is covered," he said.

Wawa officials, meanwhile, say competitors in three of the five states
where the company does business - including Pennsylvania - are using
billboards. Furthermore, Bruce said, the price break was available for
only a short time, and the ads should eliminate earlier complaints.

"The billboards are very general in nature," she said. "These billboards
do not use any symbols or logos."

The billboards are part of a larger campaign that includes print
advertising.

Bruce said Philip Morris had nothing to do with the campaign. A
"manufacturer-sponsored promotion" label on the billboards refers to the
price break, she added.

Philip Morris officials also said yesterday that the company had had no
involvement with the campaign and had yet to even see the billboards.

"We don't encourage others to do what we can't do," Philip Morris
spokesman Mike Pfeil said.