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Published: Friday, 12/31/2004

Ohio justices reject tobacco advertising on matchbook covers

COLUMBUS - Tobacco manufacturers must stop advertising on matchbook covers, the Ohio Supreme Court unanimously ruled yesterday.

The court found that R.J. Reynolds Tobacco Co., the nation's second-largest tobacco manufacturer, violated the terms of the $260 billion settlement the industry struck with Ohio and 45 other states in 1998 that prohibits advertising on merchandise outside of adult-only establishments.

The court found that matchbooks are a form of merchandise, even though the maker of one in every four cigarettes sold in the United States contended they were meant to be given away for free to adults at bars, tobacco shops, and other adult venues.

"It has been said that 'close cover before striking' is the most printed phrase in the history of the world, and [D.D. Bean & Sons'] promotional materials relate the pervasiveness of branded matches, not just to the smoking set, but to millions of other consumers," Justice Paul Pfeifer wrote.

Justice Pfeifer cited the words of the New Hampshire matchbook manufacturer who sold advertising space to R.J. Reynolds that "for every person who picks up a matchbook, there are eight other people who see it as well."

The state initially lost the court fight in Franklin County Common Pleas Court, which ruled that, since matchbooks are not typically sold commercially, they don't qualify as merchandise. The 10th District Court of Appeals disagreed, prompting the appeal to the Supreme Court.

"Matchbooks are indisputably in the stream of commerce, and once the plunge into that stream is made, the items remain merchandise," Justice Pfeifer wrote. "Metaphorically speaking, an item cannot enter the stream of commerce without getting wet."

Yesterday's decision was applauded by Ohio Attorney General Jim Petro, whose office maintained that at least some of the matchbooks were being given away at convenience stores or sold commercially.

R.J. Reynolds - whose brands include Camel, Winston, Salem, and Doral - already had ceased matchbook advertising as it waited to hear the results of this case, company spokesman Mark Smith said. Its competitors had stopped such advertising.

"It has been our opinion that the practice of purchasing space on matchbook covers to advertise cigarettes fully complied with the master settlement agreement," he said. "While the master settlement agreement bans certain forms of marketing, we believe it does not ban this type of advertising. The Ohio Supreme Court has said otherwise."

The lawsuits filed by the states against R.J. Reynolds, Philip Morris, and other major tobacco companies contended the manufacturers were targeting youths with their advertising and that ailments for lung cancer and other ailments associated with smoking had tasked their health programs.

Ohio receives annual installments on the roughly $10 billion it is slated to receive over 25 years under the settlement.

- Jim Provance



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