Subject:
             Remember the Wawa Billboards? They're BAAACK! [part VI]
        Date:
             Fri, 03 Dec 1999 22:58:20 -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>
  References:
             1 , 2 , 3 , 4 , 5
 
 

This update will be in three parts.  First, today I filed a formal
complaint with the AG regarding myriad violations of the MSA by Philip
Morris.  Second, today's Inky piece documented the AG's failure to
investigate the Wawa/PM contract.  Third, today's Tribune-Review piece
documented the current existence in PA of another retailer that is
financing tobacco billboard ads.

In the aggregate, this documents the ongoing nature of this national
problem, with PA manifestations.  Legally, my litigation certainly isn't
moot; thus, I would hope that I'll finally attain standing to address
the deficiencies in the MSA.

*

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
12/3/99
http://members.home.net/rsklaroff/homepage.html

Mike Fisher
Attorney General
16th Floor
Strawberry Square
Harrisburg, PA  17120                                           re:
Master Settlement Agreement

Dear General Fisher:

This letter is being sent to your office (717-787-3391) as well as by
FAX to yourself (717-787-8242) and to Mr. Joel Ressler (717-772-4526).
I anticipate receipt of prompt confirmation that you have addressed its
contents, in light of the growing problems that have been identified
with regard to Philip Morris' lack of compliance with the MSA.

In my 8/18/99 response-letter to you, I left the door open to a
discussion of our conflict, and I have held a 20 minute conversation
with Mr. Ressler in the interim.  Nevertheless, absent any meaningful
dialogue, I am first filing this letter and I may need to follow-up its
contents if you do not publicly announce that you will investigate the
concerns I raise.

First, I am pleased that Wawa Food Markets will remove its tobacco
billboard advertising by December 14th, but I am not pleased that your
spokesperson, Mr. Sean Connally, stated (as per today's Inquirer, in an
article written by Mr. Glen Justice) "no further investigation into the
tobacco company's role is under way.  'Let's not forget that the
ultimate goal is to discontinue the billboards,' he said."  Earlier in
the article, it was reported that you "will be taking action against a
second convenience-store company, Sheetz, Inc., which is running similar
ads in other parts of Pennsylvania.  Fisher is sending the company a
letter, as he did with Wawa."  It is surprising that you would not want
to investigate the possibility that there may be a linkage between these
phenomena.

This fact is compounded by the documented concern that this is a
national pattern, inasmuch as other tobacco billboard ads (greater than
14 square-feet) have been reported in California, New Mexico, Wyoming
and Kentucky (as per the appended e-mails).  Inasmuch as you have had a
leadership role in the generation of the Master Settlement Agreement, it
would be appropriate for you to adopt a broader perspective with regard
to compliance with its tenets.  At the very least, you should review the
contents of the contract effected between Philip Morris and the
third-parties who are placing the ads, inasmuch as providing
price-breaks to the retailers indirectly finances the billboards
(assuming, arguendo that Philip Morris isn't directly purchasing the
suspect advertising).

To quote Robert S. Zimmerman, the PA Secretary of Health, "National data
demonstrate that youth. . .are very sensitive to the price of tobacco
products."  And to quote your own office (as per Mr. Justice's article
in yesterday's Inquirer), your letter to Wawa last week accused it of
having "reneged" on your agreement of six months ago.  Clearly, there is
a gross pattern of behavior here that cannot be forestalled merely be
verbal concurrence, inasmuch as there is nothing to stop Wawa (or
others) from doing this again.

Indeed, as I have noted in court submissions, you have failed to exact a
stipulation & fine from Philip Morris for its complicity in this
process, inasmuch as it failed to take the reasonable business steps
mandated in the MSA to ensure its logo wasn't being misused.  I was
pleased to read you had written to Wawa, Philip Morris, Sheetz and to
the FTC, and I would appreciate a copy of both these letters and those
you wrote to anyone else with whom you have dealt as you have been
attempting to enforce the MSA.

Today's Tribune Review states that Sheetz doesn't plan to pull its
billboard advertising; this provides further evidence that you should
attempt to treat the underlying diagnosis.

My second concern is with the [appended] glossy advertising insert that
was published in the City Paper in Philadelphia.  The picture clearly
depicts minority teenagers who are attractively dressed and
accessorized.  Regardless of the type of publication in which this ad
may appear, it is prima faciae evidence that Philip Morris continues
youth marketing.

The MSA states, in pertinent part:  "Permanent Relief 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)]

My third concern is with the [appended] unsolicited letter that was
received by a patient. Clearly, Philip Morris will send tobacco to women
who merely sign a document and falsify a date-of-birth.  Again, this
killer-company is purveying its poisons to all comers.

The MSA states, also:  "Permanent Relief 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."  [III (g)]

General Fisher, some people may view each violation of the MSA as
insignificant; yet,   in the aggregate, Philip Morris is demonstrating
its self-perception that it won't be penalized for this behavior.
Please help me prove it wrong.

Sincerely,

[RBS]

*

http://www.phillynews.com/inquirer/99/Dec/03/city/TOBA03.htm

Pulling of billboard ads to come almost on schedule

Wawa's "lowest pack prices" campaign was supposed to end by Dec. 23. The
flap in Pa. changed that to Dec. 14.

By Glen Justice
INQUIRER HARRISBURG BUREAU

HARRISBURG - Wawa Inc.'s controversial ad campaign for low-priced
cigarettes will have substantially run its course anyway by the time
state officials force the billboards down.

Last week, anti-tobacco activists contended that the ads violated the
nationwide tobacco settlement, the $206 billion deal between 46 states
and the nation's largest tobacco companies designed to stem state
litigation over the cost of treating sick smokers.

The settlement prohibits the industry from advertising on billboards and
contains language to discourage it from allowing third parties - such as
retailers - from advertising brand-name cigarettes.

Wawa's billboards did not mention cigarettes. Rather, they contained a
Wawa logo, a warning that the stores do not sell tobacco to minors, and
this claim: "Lowest pack prices allowed by law. #1 brand even lower!"

Attorney General Mike Fisher said Wednesday that Wawa, responding to
pressure from the state, had agreed to pull the billboards within eight
days. However, that agreement will only shorten the campaign by just
more than a week, said Wawa spokeswoman Lori Bruce.

Bruce said the billboards went up Nov. 15 in five states, including
Pennsylvania. They were slated to come down by Dec. 23. Under the
agreement with Fisher, they will now be down in all states by Dec. 14,
Bruce said.

"It's a little before they would have come down," Bruce said. "It's
close, but I can't say it ran its course."

She noted that it takes time to erect and take down the boards. A Fisher
spokesman said the state agreed to the eight-day time line to give the
chain's workers time to get the billboards down from their various
locations.

It is still not clear how many of the roughly 40 boards appeared in
Pennsylvania.

A Fisher spokesman said the case illustrates the inherent difficulty in
policing tobacco billboards, a process that depends on public
complaints.

"As soon as we were made aware . . . we moved as quickly as possible,"
said Fisher spokesman Sean Connolly. "It still involves looking at the
ad, researching the law, informing the parties, and coming up with a
strategy."

It appears that Fisher will be taking action against a second
convenience-story company, Sheetz Inc., which is running similar ads in
other parts of Pennsylvania. Fisher is sending the company a letter, as
he did with Wawa.

Louie Sheetz, owner of the five-state chain, said he thought its ads
were "reasonable" but that he anticipated contact from Fisher. "We're
concerned," he said.

Activists have urged Fisher to take a harder line with retailers and use
the courts to pressure Philip Morris into doing more to stop retailers
from running billboards. Activists said the Wawa billboards made a
thinly veiled reference to Marlboros, which are made by Philip Morris
and are widely known as the top-selling cigarette.

Wawa pulled a similar billboard campaign earlier this year, also under
pressure from the state.

"The second time, you have to ask for more than pulling the ads a week
ahead of time," said Philadelphia activist Jeff Barg. "That is not a
sufficient remedy."

*

http://www.tribune-review.com/

No butts about it, official wants end of billboards touting cheap smokes

By Joe Mandak
TRIBUNE-REVIEW

The Sheetz billboard on East Pittsburgh Street in Greensburg reads:
"Leading brand cigarette packs as
low as $2.34, plus tax. ... Any cheaper, we'd be in jail."

Sheetz isn't really risking jail by advertising such low prices.

But the Altoona-based convenience store chain has drawn the scrutiny of
Pennsylvania Attorney General
Mike Fisher, who has been waging war this year on what he perceives to
be illegal - or at least, improper - cigarette advertising across the
state.

"There's no question that along with whatever legal, statutory authority
this office has, that it also has a bully pulpit," Fisher's press
secretary, Sean Connolly said Thursday.

To that end, Fisher's office this week sent a letter to Sheetz officials
asking them to take down the
billboards.

"I don't think (the letter) will talk about enforcement action,"
Connolly said. "At this point, I think it asks them to voluntarily take
down the billboards."

What is unclear, however, is whether Fisher's office has any legal
reason to make that request in the
first place.

In November 1998, several major tobacco manufacturers settled a lawsuit
brought by 46 states
citing marketing practices designed to hook people - sometimes even
children - on their wares.

Fisher was an architect of the settlement, which calls for the tobacco
companies to pay $206 billion
to those states - Pennsylvania's share is $11.3 billion - over the next
25 years. Four other states
sued separately and settled for a total of $40 billion.

But the settlements also called for the tobacco companies to stop
advertising their products via
billboards, among other means, which the states claimed could expose
children to tobacco products.

As a result, Fisher has been taking on retail outlets that have
continued to advertise cigarettes on
billboards because he claims such billboards violate that settlement -
even though the retailers
weren't targeted in the lawsuit and weren't a party to the settlement
talks.

"As we understand it, that agreement is with the manufacturers," said
Louie Sheetz, executive vice
president for marketing of the convenience store chain bearing his
family's name. "Our interpretation
is, as retailers, we would still advertise cigarettes."

But Connolly said Fisher is entitled to go after retailers' billboards
because "tobacco companies are
required to take `commercially reasonable' steps to make sure retailers
don't advertise their products" in violation of the settlement.

The issue first came to a head in May, when Fisher objected that Sheetz
and other stores were
advertising Marlboro - the top-selling cigarette in the country - on
their billboards.

Sheetz and other Pennsylvania Food Merchants Association members agreed
to stop advertising specific brands of cigarettes on their billboards
after Fisher threatened legal action.

Wawa Food Markets - a five-state Delaware-based chain with several
stores in the Philadelphia area - was another company that made the
change, Connolly said, at Fisher's request.

But Sheetz said the retailers dropped brand names from their billboards
at the behest of the tobacco
manufacturers.

"`Commercially reasonable' means, I, as a manufacturer, have a
relationship with you as a retailer,"
Sheetz said. "And to the extent that it is possible for me to influence
you, I will. And (the tobacco
companies) did exactly that" in May.

"They told us, `We can't put (cigarette) brands out and advertise them,
so we don't want you to put
brands out and advertise them either'" on the billboards, Sheetz said.
"So we changed the signs."

"It is a legal product, and (retailers) advertising it is legal, but I
think Mike Fisher ... it was his office who obviously had an issue with
cigarette brand advertising still being out there" several months after
the tobacco lawsuit settlement, Sheetz said.

Despite those billboard changes, the Delaware convenience store chain
found itself in hot water last
week when Fisher asked it to remove its revised billboards.

Connolly said the billboards violated the settlement because, although
they didn't mention a brand
name, they did make reference to low prices on "the Number One brand" -
which Connolly said is
smoker shorthand for Marlboro.

Fisher announced Wednesday that he had informed Wawa and Philip Morris -
Marlboro's parent company - that he was prepared to take enforcement
action over the billboards if necessary.

"It is our understanding that as of (Wednesday), the Attorney General
for the Commonwealth of
Pennsylvania has indicated his commitment to have all retailers
eliminate billboard advertising for
tobacco products in Pennsylvania,'' Wawa spokeswoman Lori Bruce said
that day.

"Therefore, Wawa has agreed to discontinue the current billboard
campaign."

Sheetz said he couldn't predict what his company will do when it
receives Fisher's letter about Sheetz's new billboards because he hasn't
seen what it specifically says.

Sheetz believes Fisher is motivated by anti-tobacco groups that have
accused him and other state
attorneys general of "selling out" to Big Tobacco under last year's
settlement.

The attorneys general "don't want anybody painting the picture of them
being weak or less than objective or tough with the cigarette
manufacturers ... and they're, in turn, going to put a little bit of
pressure on us" retailers, Sheetz said.

"We understand that. We don't agree with it, but we understand it. And
we're going to take any
recommendation that comes from any state office and pay mind to it,"
Sheetz said. "But ultimately we're going to make the decisions that make
sense for us."

Retailers using cigarette billboards are "not in violation of any
agreement that was made," Sheetz
said.

"And until somebody says you can't do it, we're going to continue to
advertise that we have cigarettes and that we have good prices on them."