The Last Days of Joe Camel: How a team of lawyers defeated big tobacco.
By Nina Siegal
One late afternoon in December 1991 San Francisco sole practitioner
Janet C. Mangini took a break from her work to read the newspaper.
Scanning the pages, her eyes focused on an article about R.J. Reynolds
Tobacco Company's cigarette advertising.
The article quoted three studies published in the Journal of the
American Medical Association (JAMA) that concluded Camel's popularity
with teen smokers increased 66-fold after Joe Camel came on the
scene in 1988. Children as young as six recognized the cartoon character.
Mangini recalled seeing Joe Camel's image riding motorcycles and
playing pool with his female comrades, Josephine Camels. He hung
out with other hip young camels-dressed suavely and lit dramatically
in bars and clubs. Joe seemed to be always on the move, periodically
dabbling in racing tournaments or jamming with a jazz band.
"It bothered me that little kids recognized Joe Camel the
same way I recognized Mickey Mouse when I was a kid," says
The following weekend at a Christmas party she was discussing legal
cases with Alan M. Caplan and Philip Neumark, lawyers with the five-attorney
firm of Bushnell & Caplan LLP who rent out an office to
her. Mangini mentioned she wanted to take on bigger issues. She
had been practicing law for ten years, handling primarily family
law and personal injury cases. "I said to them, 'If we want
to do something good, we should go after Joe Camel'." Everyone
At a meeting a few days later the three lawyers discussed a possible
cause of action. They were well aware that traditional personal
injury suits hadn't worked. They remembered a statute they had used
to sue a company that manufactured baby bottles that allowed lead
to leach into the liquid. Under California's Business and Professions
Code §17200 et seq, also known as the Unfair Business Practices
Act (or Unfair Competition Act), any individual can act as a private
attorney general for the state of California and file a suit against
a company to halt a harmful or unfair business practice. This law
also provides for attorneys fees. Mangini thought they had a chance
at succeeding against R.J. Reynolds if they focused on the company's
business practices - in particular, their marketing strategy, which
she believed directly targeted minors.
At the time, Mangini and the other lawyers did not know whether
any of the marketing documents that were about to become part of
a new wave of lawsuits that would finally break the lawsuit-proof
While Mangini, Caplan, and Neumark were huddled in their offices
trying to figure out what to do, other plaintiffs attorneys were
doing the same. Forty years of tobacco litigation had led nowhere.
Tobacco companies had asserted with impunity that health hazards
related to smoking were unknown. Individual litigation against cigarette
manufacturers for health problems ended disastrously. The tobacco
companies had an ironclad defense: If a person chose to smoke, the
tobacco companies could hardly be blamed for resulting illnesses.
But around this time, plaintiffs lawyers began taking a different
approach. Bushnell Caplan along with the firm of Milberg Weiss Bershad
Hynes & Lerach had already begun examining whether the tobacco
industry had hidden damaging evidence about the health hazards and
addictive nature of their products. (Their research would eventually
turn into a lawsuit filed in 1992, Cordova v Liggett Group, in San
Diego County Superior Court. The suit would charge the tobacco companies
with "manipulating nicotine to addict smokers and with conspiring
not to develop or market safer cigarettes.")
Before Cordova was filed, however, Mangini and others began fashioning
a different attack, one that would take away the tobacco industry's
best defense because it didn't require an injured plaintiff.
Since California has prohibited the sale of cigarettes to minors
for almost a hundred years, Mangini figured it was probably unlawful
for the cigarette company to sell their wares with minors in mind.
Caplan and Neumark agreed. Mangini knew that it would take enormous
resources to fund the legal fight that lay ahead, and she couldn't
afford to mount such an attack herself. Instead, she volunteered
to be the plaintiff. She also wanted some involvement with the case
and a particular result: the termination of the Camel campaign.
The attorneys from Bushnell Caplan stepped in as lead counsel.
Caplan and Neumark tried to collect data on the effects of cigarette
advertising on youth and to compile studies on the harmful health
effects of both firsthand and secondhand smoke. They quickly discovered
that the tobacco industry had done a good job in preventing its
own studies of the product's harmful effects from reaching the public.
The attorneys shifted their focus to Joe Camel promotional advertising,
such as caps, jackets, and mugs that could be "bought"
with redeemed "Camel Cash."
Sensing that they were in over their heads, Mangini and Caplan
needed someone who knew how to take on big corporate power and influence.
They enlisted Milberg Weiss, the most well-known firm for filing
shareholder class actions.
Patrick J. Coughlin, a partner with that firm in San Diego, was
interested. His father had died of lung cancer in 1985, and his
mother had recently been diagnosed with emphysema; both had been
lifelong smokers. His mother had suffered from a terrible cough,
but she said she couldn't give up the addiction. "My mom was
saying, 'I always knew that they were bad for me, but I didn't know
that I'd never be able to quit,'" remembers Coughlin. "I
looked at the age which most people start smoking, and I realized
that most of them can't make those lifelong decisions at that age."
Coughlin was particularly concerned about his young nieces and nephews
who were getting to the age where they pick up the habit.
As a securities litigation specialist, Coughlin brought to the
team. He had expertise documentation in hard-to-reach places, and
he had money behind him. He also thought there might be some crossover
between Mangini and the pending Cordova case. Milberg Weiss ultimately
invested more than $13 million in expenses and attorneys fees on
the case, far beyond what the small San Francisco firm had in its
The work was divvied up: 8o percent went to Milberg Weiss and about
10 to 20 percent went to Bushnell, Caplan. But that didn't mean
the San Francisco team had a small workload. "That 10 percent
is probably bigger than any case another firm of their size would
have," says Coughlin. Caplan and Neumark sorted through reams
of documents and handled loads of paperwork. They also developed
ever more complex strategies for overcoming obstacles set up by
R.J. Reynolds. Mangini took a back seat. She wanted to be apprised
of new developments, while maintaining distance from the case.
In a lawsuit filed in December 1991 in the Superior Court of San
Francisco, Mangini v. R.J. Reynolds Tobacco Co., the plaintiffs
argued that the Joe Camel material violated the Federal Cigarette
Labeling and Advertising Act because the required warning labels
were not printed on the promotional materials. They also argue that
the companies were targeting minors.
The lawsuit was admittedly skimpy. Their claim that young people
chose to smoke Camels because of the cartoon figure was based on
circumstantial evidence, such as the JAMA article that originally
infuriated Mangini and the studies by the California Department
of Health about the health effects of smoking. But the plaintiffs
didn't have direct evidence that the company specifically created
the Joe Camel campaign to attract young people to the brand. They
certainly didn't have any company documents stating that R.J. Reynolds
was specifically targeting the youth market.
Caplan said he was sure he would find a lot more evidence to support
the claim once they filed the suit and began discovery. They figured
R.J. Reynolds wasn't going to just hand over such damaging evidence.
But they were prepared to fight. "After we began to do the
research, we knew we would have to devote a significant amount of
time to it," says Caplan. The attorneys quickly got their first
real glimpse that this was not going to be an easy case.
When the lawsuit landed on the desk of R.J. Reynolds lead counsel
H. Joseph Escher, a partner at Howard, Rice, Nemerovski, Canady,
Falk & Rabkin, he didn't think much of it. He had handled unfair
business practice cases in the past, but "usually, they're
about a real business practice and not challenges to advertising,"
he says. "This seemed like a 'softer' kind of theory. The lawsuit
didn't say the company did something it didn't do. It was about
establishing a theory of what kinds of advertising are legal."
From a legal perspective, Escher thought the complaint shouldn't
go anywhere. "Can you hold an advertiser liable because the
advertising might encourage someone to break the law?" he asks.
"Is there anyone who thinks that no advertisement for beer
is appealing to 20-year-old men who can't legally purchase beer?
Does anyone think that an ad for a sports car speeding along the
Bonneville Salt Flats might suggest to a future buyer of that vehicle
that the car is capable of going over the speed limit, in violation
of the law?"
Escher filed for summary judgment. He argued that because the Federal
Cigarette Labeling and Advertising Act provides that the federal
government regulates all tobacco advertising and promotions, any
individual or state claim was preempted by federal law. The San
Francisco trial court agreed. The plaintiffs appealed to the First
District Court of Appeal. Associate justice Donald B. King of that
court ruled that they could proceed under their theory-that R.J.
Reynolds was targeting minors and encouraging kids and vendors to
break the law. R.J. Reynolds appealed the decision to the California
"I thought justice King's decision was the most wonderfully
well-reasoned opinion ' " says Mangini. "Of course, we
were concerned because you never know what is going to happen on
appeal, but we were all fairly confident that we should have been
able to pursue our claim, and we felt we would win."
Following justice King's decision, news of the suit spread across
the country. Twenty-three state attorneys general, then-Surgeon
General C. Everett Koop, the American Lung Association, the American
Cancer Society, and the American Heart Association filed amicus
briefs in support of Mangini's claim.
Milberg Weiss partner Bill Lerach argued the case in front of the
California Supreme Court, stating that R.J. Reynolds' Joe Camel
campaign constituted an unfair, unlawful, and fraudulent business
practice because it targeted minors and induced minors and cigarette
sellers to break the law. The team gathered evidence culled from
widely circulated news accounts, surgeon general reports, studies
from the Centers for Disease Control, tobacco industry trade journals,
and samples of advertising in magazines popular with young people.
In a unanimous decision in 1994, the California Supreme Court affirmed
the court of appeal decision, ruling that Mangini should be able
to pursue her claims. It quoted the lower court in saying "the
targeting of minors is oppressive and unscrupulous, in that it exploits
minors by luring them into an unhealthy and potentially life-threatening
addiction before they have achieved the maturity necessary to make
an informed decision whether to take up smoking despite its health
The California Supreme Court decision made it clear to Escher that
politics were going to get in the way of his client's shot at a
fair trial. "Emotionally, for me, what this case was about
was trying to apply the rule of law impartially to a very unpopular
client," he says. The defense sought review by the U.S. Supreme
Court, but the request was declined.
With the courtroom door finally open, the most important part of
the case could begin. But the plaintiffs legal team wasn't sure
what documents the company had and where to start looking. Coughlin
collected data on the effects of cigarette advertising on youth.
This time, they were more successful because Milberg Weiss was further
along in its discovery in Cordova. During that case they retrieved
some early cigarette marketing documents, including information
about ad campaigns going back to the early 1970s in France. Those
documents seemed to indicate that the cigarette manufacturers did,
in fact, specifically target youth.
The plaintiffs showed those documents to the judge, arguing that
because this evidence existed, they should have the right to any
other documents that were created in the 1970s. Escher countered
that much of that material was irrelevant to the ad campaign. The
plaintiffs argued that such data would help them establish the company's
history of targeting youth. The judge agreed.
Next, the two sides got stuck on the thorny issue of defining "youth."
The plaintiffs argued that R.J. Reynolds had intentionally changed
the terminology in internal company documents in the 1970s to avoid
references to minors. Instead, they referred to underage consumers
as "young adult smokers," or "first usual brand young
adult smokers," and sometimes simply "Marlboro smokers"
since Marlboro had cornered the youth market. In 1996 and 1997 the
mediating judge and court began ruling against the defense. The
judge ordered the defense to turn over everything that came under
any of those alternate headings.
Mangini, who had limited personal involvement with the harrowing
discovery process, thought the defense's arguments were simply dilatory
tactics. "Papering to death is a well-established tradition
among big firms," says Mangini. "The rigor with which
they fought and defended their actions was no surprise to any of
After the judge forced R.J. Reynolds to open its files, the plaintiffs
were deluged with paper. Mangini was excited. "We always thought
that there wouldn't be any smoking guns. But when I had a chance
to review some of the documents, I was surprised with the clarity
that these documents set out our case," she says.
Ten attorneys from Milberg Weiss sifted through some 700 boxes
of R.J. Reynolds documents sent directly to their San Diego offices,
and other attorneys reviewed millions of pages elsewhere. Ultimately,
the team reviewed more than 30 million pages of documents over nearly
a 5-year period. Most of these internal documents had never been
seen by anyone outside the company. Coughlin saw a 20-year practice
of studying and targeting teenagers emerging from the mountain of
paper. It began with loss of market share to Philip Morris Companies,
Inc. Documents show that the company conducted tests in Canada and
finally mounted a full-throttle campaign in. the United States.
"Finding those documents was chilling," he says. Though
some of the memos, studies, and company notes were obviously helpful
to the plaintiffs, others were more complicated and elusive.
"You didn't just look at a document and say 'WOW'" he
adds. "You had to go over it a few times to understand what
they were saying. You would read it a second and a third time and
then say, 'so that's what they were doing.'"
In one document the vice president of marketing for R.J. Reynolds
in 1974 told company executives of the importance of 14- to 24-year-old
smokers, or the "young adult market." According to the
document, "They represent tomorrow's cigarette business. As
this 14-24 age group matures, they will account for a key share
of the total cigarette volume-for at least the next 25 years."
This document also stated that, "Both Philip Morris and Brown
& Williamson [Tobacco Corp.], and particularly their fast growing
major brands, Marlboro and Kool, have shown unusual strength among
these younger smokers.... With strong young adult franchises and
high cigarette brand loyalties, this suggests continued growth for
Philip Morris and B&W as their smokers mature."
A March 1982 confidential memorandum read by an R.J. Reynolds outside
consultant outlined a search for "existing data pertaining
to incidence and consumption among youth age 12-17."
The New York-based advertising agency Young & Rubicam offered
its Camel advertising overview, concluding that the "'evolution'
of Joe continues to build the Brand's vitality, increasing Camel's
momentum as reflected in both awareness and share-of-smoker data."
A 1984 confidential report outlined the importance of attracting
"presmokers" ages 12 to 24. "Younger adult smokers
are the only source of replacement smokers," an R.J. Reynolds
market research analyst summarized in the appendix to her report.
"Less than one-third of smokers (31%) start after age 18. Only
5% of smokers start after age 24."
Joe Camel was tailor-made to attract that market. "In view
of the need to reverse the preference for Marlboros among younger
smokers, I wonder whether comic strip type copy might get a much
higher readership among younger people in any other type of copy,"
pondered an executive from R.J. Reynolds's advertising agency in
Coughlin says the low point for him was learning about famous claim
that cigarette companies spend millions of dollars a year on antismoking
campaigns. There is no federal state law requiring tobacco companies
to create such advertising, but R.J. Reynolds often pointed to expenditures
on antismoking ads as evidence that they are stopping young people
from trying their product.
In 1987 RJR McDonald, a Canadian subsidiary of R.J. Reynolds, commissioned
a study called "Youth Target 1987," which categorized
15- to 24-year-olds into seven distinct groups: big city independents,
tomorrow's leaders, transitional adults, quiet conformers, T.G.I.F.
group, insecure moralists, and small town traditionalists. According
to the study, members of the T.G.I.F. group were the "most
prominent supporters of smoking," while the "squeaky clean
tomorrow's leaders" tended to be "low consumers."
Many of the ads used in R.J. Reynolds antismoking campaigns feature
images of so-called tomorrow's leaders counseling the TG.I.F-ers
not to pick up the habit. Coughlin's experts explained that those
campaigns were directed at a group they determined would smoke anyway.
The images of goody-goodies telling other kids to "just say
no" made most kids want to try it even more.
As far as Escher was concerned, these documents and data didn't
prove much, He argued that R.J. Reynolds had a right to advertise
and that the First Amendment protects speech and image advertising,
even if those who see the company's billboards or magazine ads later
decide to break the law. "When you get into the reality of
the situation, the link between the Camel campaign and the smoker
just isn't there," he says. "But because the tobacco companies
are very unpopular, it's hard for people to accept that they are
entitled to the same protections as everybody else."
In 1997 settlement talks began in a serious way. Milberg Weiss,
Bushnell Caplan, and Mangini all agreed on basic ground rules for
the negotiations. "There was no amount of money they would
have offered to settle the case if they were not going to stop the
campaign," says Caplan.
According to Escher, however, the decision to end the Camel campaign
had already been made by top R.J. Reynolds management. "It
had been publicly announced by RJR Nabisco [Holding Corp.]'s [the
parent company] president last June," he says. Escher said
the company decided to begin settlement talks because various states
were already negotiating a national settlement with all the tobacco
companies, and R.J. Reynolds hoped to make the Mangini case part
of that arrangement. The focus, says Escher, was to "get some
more of these controversial issues behind us."
In July 1997 the company agreed to most of the terms and prepared
to terminate the Joe Camel campaign. Because any magazine containing
the cartoon character could cross state lines into California, the
company was forced to drop Joe not only in the state but across
the nation. The company also agreed to pay $10 million for antismoking
campaigns throughout California. The plaintiffs also argued for,
and won, the right to publicly disclose the information they had
gleaned. The defendants fought this last requirement, but the plaintiffs
said there would be no agreement if they didn't get disclosure rights.
No arrangement has yet been made about payment of plaintiffs' costs
and attorneys fees. That matter will be arbitrated this December.
"If there is a lesson to be learned, it's that you have to
stick to your guns if you really feel strongly about your position,"
says Mangini. "Financial gain was not our ultimate goal. As
a result, it was easy not to be swayed by financial gain arguments
and to stick to our guns and get what we wanted, which was the termination
of the campaign."
The settlement agreement also acknowledges the plaintiffs' tenaciousness.
"[T]he Mangini action, and the way that it was vigorously litigated,
was an early, significant and unique driver of the overall legal
and social controversy regarding underage smoking that led to the
decision to phase out the Joe Camel Campaign," wrote R.J. Reynolds
officials in the settlement.
On January 15, 1998, Rep. Henry A. Waxman (D-Calif.) held a press
conference in Washington, D.C., and released thousands of pages
of previously secret documents. He said they were the first detailed
revelations of "how the tobacco industry exploits our children."
After finishing the press conference with Congressman Waxman, Mangini
-and the rest of the legal team went to a restaurant to celebrate.
They asked the bartender to turn on the television set. They heard
President Clinton say that he was confident that every member of
Congress who reviewed the documents unearthed in the case would
"resolve to make 1998 the year that we actually pass comprehensive
legislation to protect our children and the public health."
"The documents that came to light today show more than ever
why it is absolutely imperative that Congress take action now to
get tobacco companies out of the business of marketing cigarettes
to children," said Clinton from the Whit House lawn in a brief
statement. Two days later the preside devoted his morning radio
address to the subject of tobacco advertising and minors.
"I realized at that point," says Mangini, "that
we were the leading edge of this whole public awareness that the
tobacco industry was focusing on our children, on hooking them for
their profits-and here was President Clinton recognizing that."
Escher believes that in the country's zeal to reduce smoking, many
people have lost sight of First Amendment an individual rights.
"I think it's completely out of control," he says, "and
some day society is going to look back and ask, Why did we compromise
so many of our values to snuff out tobacco? The danger is the hostility
to other peoples' choices. It's a loss of freedom and individualism.
Some people can't seem to recognize that the choice to smoke may
be a sensible one, and not one that's theirs."
After Joe Camel disappeared, Milberg Weiss and Bushnell Caplan
still weren't through. They are now heavily involved with Cordova,
filed against all of the nation cigarette manufacturers, alleging
that the companies are engaged in a massive public relations fraud
in California. The suit alleges that "[t]he tobacco industry
knew from studies they sponsored that smoking was hazardous and
was [and is] worried that public acknowledgment of this hazard would
adversely impact cigarette sales." The suit uses a claim based
on the Unfair Business Practices Act employed by Mangini.
In late March Milberg Weiss and Bushnell Caplan filed a new suit
against four tobacco companies, including R.J. Reynolds, charging
them with violating California's new antismoking law. This law,
instituted on January 1, 1998, bars cigarette billboard advertising
within 1,000 feet of schools and playgrounds. Once again the attorneys
used the Unfair-Business Practices Act. And once again Mangini was
The case settled in June, with the company agreeing to comply with