There are four notable exceptions to comic book publishers and cigarette manufacturers abiding by the tobacco advertisement ban in comic books. First, in 1991, National Association for Stock Car Auto Racing (NASCAR) promotional comic books mentioned the Winston cigarette brand numerous times in relation to the Winston Cup Series. New Image and MMI & Vortex Comics published the NASCAR comic books. Second, a 1992 issue of Batman featured a panel with a Marlboro Cigarette advertisement on a billboard. Third, advertisements for American cigarettes have appeared in international markets, notably in Japanese manga comic books. Finally, anti-tobacco campaigns that promote tobacco use have appeared in comic books. Lorillard’s “Tobacco is Whacko, If You’re a Teen” campaign exemplifies such tactics used by the tobacco industry. In this post, we will explore in detail the Batman Marlboro panel, comic book tobacco advertisements in international markets, and the use of purported anti-smoking campaigns in comic books that actually promote tobacco use.
Batman and Marlboro
In 1991, DC Comics published a Batman storyline where police commissioner Jim Gordon quits smoking after suffering a heart attack. This storyline prompted a public service announcement in conjunction with the American Heart Association that ran in the DC Comics line. Antithetically, in 1992 a Batman comic book panel featured a Marlboro cigarette billboard advertisement. I contacted the editor of the Batman issue with the Marlboro billboard, Dennis O’Neil, and asked him why the Marlboro advertisement appeared in the panel. He replied that, “I goofed. If I noticed that billboard when I was editing the issue I probably dismissed it as part of the urban scenery. A mistake. But we certainly never meant it as an endorsement of smoking.” He went on to state, “ And for what it’s worth, neither my staff or myself ever used cigarettes. I hate the damn things.”
I also contacted Scott Peterson, another editor for the Batman issue featuring the Marlboro billboard. He replied that
Yeah, the answer to your question is: the artist Tom Grindberg, if memory serves, and [sic] looked at that panel, which I haven’t seen in nearly 20 years, I’m pretty sure that’s [sic] Tom simply drew it in, in order to add some verisimilitude or at least atmosphere. And although it was against company policy to use real brands like that, I’m afraid we missed it–had we seen it, we would have taken it out or covered it up or something.
Peterson recounted that New York City Public Advocate Mark J. Green held a press conference after the issue was released and “denounced our attempts to coerce impressionable young children towards the evils of tobacco.” Green’s denunciation was rather ironic where, “…[Green’s] target was kinda unfortunate in that he was going after a guy [Dennis O’Neil] who hated smoking and who’d already used his comics platform to try to do something about it.”
The Marlboro billboard was conspicuously placed directly beside Batman in the panel, but it was not an intentional move by DC Comics to advertise Marlboro cigarettes. Quite to the contrary, the panel was unfortunately inked with the Marlboro display much to the chagrin of the issue’s editors. The apparent endorsement of Marlboro was a regrettable error that slipped by the editors, who were ardently anti-smoking. Additionally, archived Phillip Morris documents do not reveal any link between Batman #485, DC Comics, and Phillip Morris. As Peterson wrote, “I CAN [original emphasis] say that Philip Morris had absolutely nothing to do with that issue–it was entirely the kind of spur of the moment decision an artist makes dozens, hundreds of times per comic, and we simply missed it.”
International Comic Book Advertisements
The 1964 Code limited its prohibition of comic advertisements to the U.S., its territories, and its military bases. As a result, the opportunity for cigarette manufacturers to advertise in comic books in foreign markets was left open. Cigarette manufacturers, however, vehemently denied that they advertised cigarettes in foreign comic books. Moreover, many companies struggled with the issue internally. We will review a Reader’s Digest article that claimed cigarette advertisements appeared in a Malaysian comic book and the subsequent public relations responses from tobacco companies. We will then turn to Philip Morris, Brown & Williamson, and R.J. Reynolds advertisements in Japanese manga comic books.
Reader’s Digest, R.J. Reynolds, Philip Morris, Brown & Williamson, and Gila-Gila
In 1993, Reader’s Digest published an article that addressed international cigarette marketing. The article stated that a Lucky Strike advertisement appeared in a Malaysian comic book, Gila-Gila, which was popular with elementary-school children. A memorandum by Brenda Follmer, R.J. Reynolds International Spokesperson, expressed the public relations concern, “As you can see, the story is extremely biased and one-sided…replete with erroneous information…and fails to acknowledge the sovereign right of local governments to establish their own laws and regulations, with which the cigarette companies are in total compliance.” Follmer promised to provide “bullet-proof” responses to local media inquiries, and advised that international media inquires be directed to her office.
Philip Morris was also concerned with the possible fallout from the Reader’s Digest article. Barry Holt, Philip Morris’ Vice President of Corporate Communications, fowarded a memorandum outlining strategies to deal with media inquiries concerning the Reader’s Digest article. Darienne L. Dennis, Phillip Morris’s Director of Communications, outlined the strategies, which included responding to the claim that U.S. tobacco companies advertised in Gila-Gila. It was recommended that Philip Morris representatives “avoid a debate on individual points” raised by the article. Recommended responses included that, “Philip Morris takes aggressive legal action against people who put cigarette trademarks on children’s items,” and that, “The company does not market to children…we direct our marketing communications to adult smokers.”
Interestingly, the popularity of Gila-Gila with smokers, especially young smokers, was well known to Philip Morris. In 1987, Philip Morris Asia Incorporated distributed a memorandum stating that Gila-Gila was the favorite magazine of Marlboro smokers in West Malaysia. A 1988 memorandum stated that Gila-Gila was the third favorite magazine of Marlboro smokers in East Malaysia. A 1991 marketing report, prepared for Philip Morris Asia Inc., showed that Gila-Gila was one of the most popular magazines read in East Malaysia, with 48 percent of its smoking readership below the age of 24.
Brown & Williamson, of course, would have had a much more difficult time refuting accusations that it marketed to children through Gila-Gila. Lincoln R. Lewis, Director of International Brands for Brown & Williamson Tobacco Corp., was provided with a post-evaluation of Lucky Strike marketing in Malaysia in 1989. The evaluation concerned marketing Lucky Strike Filters to Malays in various media outlets, including Gila-Gila. The evaluation asserted that Malays were highly receptive to Lucky Strike Filter advertising and promotional activities, which included detailed recollections of Gila-Gila advertisements. The evaluation also noted that advertisements in Gila-Gila helped create awareness of the Lucky Strike Filter. Given the young readership and the comic book format, it very likely that children were as receptive as the adults were to the Gila-Gila advertisements.
Japanese manga comic book, R.J. Reynolds, Philip Morris, and Brown & Williamson
In addition to advertising tobacco products in Gila-Gila, tobacco companies also marketed tobacco products in Japanese manga comic books. A January 29, 1993, Philip Morris Kabushiki Kaisha memorandum urged Dinyar (Dinny) S. Devitre, Senior Vice President Corporate Planning, Philip Morris Companies, Inc., Executive Vice President, Phillip Morris International & Chairman & Chief Executive Officer, PMKK Japan, to consider using adult comic books to advertise due to “competitive pressures.” An accompanying attachment broke down the readership for popular manga comic books. The attachment showed that R.J. Reynolds and Brown & Williamson advertised in four and two manga comic books respectively. Each company advertised in Big Comics Spirits, with 1.6% of its readership 14 years old or younger and 22.5% of its readership 15-19 years old. Each company placed the largest number of advertisements in Big Comics Spirits throughout 1992. R.J. Reynolds also placed advertisements in Young Jump, which had 3.5% of its readership 14 years old or younger and 21.6% of its readership 15-19 years old. Young Jump received the second largest number of advertisement placements from R.J. Reynolds. Devitre handwrote a response on the memorandum and forwarded it to Timothy Lindon, Regional Counsel for Philip Morris Asia, stating, “I think you’ll agree that unless we get into this medium, we’ll be in trouble competitively. We resumed advertising in December.”
Philip Morris attorneys were, of course, concerned that magna advertisements were approved without their counsel. A memorandum from February 1, 1993, sent by Lindon to Lee Pollak, Vice President & General Counsel, Phillip Morris Management Corp., described an attached memorandum to Owen C. Smith, Associate General Counsel & Secretary, Philip Morris Management Corp., responding to whether advertising should appear manga comic books. The attachment, unfortunately, cannot be accessed because it is privileged content. Pollak then wrote a memorandum to Geoff Bible, Executive Vice President of Philip Morris International, and addressed the possible use of cigarette advertisements in manga comic books. Pollak was concerned that Philip Morris was advertising in manga comic books without consulting legal counsel, and he asked Bible to discuss whether advertising should resume in manga comic books.
In Pollak’s memorandum, he described a previous promotion for Lark cigarettes, where a thirty-page manga comic book made by Philip Morris Japan was to be given away with the purchase of two Lark cigarette packs. He noted that the promotion was scrapped at a cost of $1 million dollars because of potential public relations issues from advertising in a comic book. Pollak advised that the January 29 memorandum was the second time that Philip Morris was recommended to follow the lead of Japan Tobacco, R.J. Reynolds, and Brown & Williamson and advertise in manga comic books. The first recommendation was rejected due to public relation concerns, and it was proposed that Philip Morris Japan ask its competitors to withdraw from advertising in manga. When Philip Morris’s competitors did not withdraw, it was again urged to advertise in manga, which, as Devitre noted, it began doing in December of 1992.
Devitre defended his reasons for not consulting with legal counsel before advertising in manga comic books in a memorandum to Bible. His reasons included that, “Advertising in adult comics appeared to be clearly within the Philip Morris International Cigarette Marketing Code,” Philip Morris would be at a serious competitive disadvantage if it did not advertise in manga comic books, the “Japanese Cigarette Advertising Code of 1990 clearly permits advertising in this medium,” and that competitors had not withdrawn advertisements from manga comic books. Bible replied by discussing the canceled Lark Cigarette promotion, politely stating, “I know that the circumstances around that episode were different but philosophically I sense that our legal people in New York would feel concerned about your new initiative.”
On February 12, 1993, a Philip Morris Kabushiki Kaisha memorandum discussed the use of tobacco advertisement in manga comic books. It had an accompanying attachment that showed cigarette companies that advertised in manga comic books, and the readership of those comic books, which was similar to the January 29 attachment discussed above. The February 12 attachment showed that Japan Tobacco, R.J. Reynolds, and Brown & Williamson advertised in manga comic books. R.J. Reynolds advertised in four manga comic books, and Brown & Williamson advertised in two manga comic books. Notably, the February 12 attachment failed to break down the under-19 years old readership like the January 29 attachment. It showed that each company advertised in Big Comic Spirits, which 24% of its readers were 19 years old, and that R.J. Reynolds advertised in Young Jump, which 25% of its readers were 19 years old.
From the internal documents, it is clear that Philip Morris knew that the purported “adult” manga comic books reached substantial numbers of young readers. It is almost certain that R.J. Reynolds and Brown & Williamson also knew about the young readership. The “adult” label is extremely misleading where the manga comic books had up to 25% of readers under 19 years old. The purpose of the Cigarette Advertising Code was to prevent tobacco companies from targeting young people, and the tobacco companies included a prohibition against advertising in comic books because of the reach to the youth market. Conversely, Philip Morris, Brown & Williamson, and R.J. Reynolds exploited the less regulated international market to promote youth smoking. The most revealing aspect of this exploitation comes from Philip Morris’ internal memorandum. These internal documents reveal that Philip Morris was more concerned with sales, market competition, and public relation issues than it was concerned with the health of Japanese children. Philip Morris advertisements in manga comic books demonstrate the company’s hypocrisy when juxtaposed to the public relations strategy taken for the Reader’s Digest article. As noted above, the recommended responses included, “Philip Morris takes aggressive legal action against people who put cigarette trademarks on children’s items,” and “The company does not market to children…we direct our marketing communications to adult smokers.”
Tobacco is Whacko
Studies have shown that anti-smoking campaigns funded by the tobacco industry are largely ineffective, and some campaigns are even harmful to anti-smoking efforts. Tobacco companies often oppose state funded anti-smoking campaigns by arguing that they waste money because they duplicate tobacco industry anti-smoking campaigns. One campaign that was ineffective and even harmful to anti-smoking efforts was Lorillard’s “Tobacco is Whacko” campaign. The campaign has been blamed for framing smoking as a rebellious activity and not discouraging smoking. We will explore the problematic message from the “Tobacco is Whacko” campaign, the public responses to the message, and we will examine Lorillard’s internal discussion about the campaign.
“Tobacco is Whacko, If You’re a Teen”
Marvel Comics and DC Comics allowed Lorillard Tobacco to run its “Tobacco is Whacko, If You’re a Teen” campaign in their comic books. Interestingly, Lorillard’s “anti-smoking” message is evocative of a Brown & Williamson Tobacco Co. youth marketing strategy, “Present the cigarette as one of the few initiations into the adult world…touch on the basic symbols of the growing-up, maturity process.” The proclamation that “Tobacco is Whacko” is highly qualified by, “If You’re a Teen.” The message suggests that teenage tobacco use is “whacko,” but not adult tobacco use. Like the Brown and Williamson promotion strategy, this suggests that tobacco use is a symbol of maturity. Lorillard was not a stranger to targeting teenagers in advertisements. In 1978, Lorillard described high school students as “the base of our business.”
Lorillard worked with advertising agency Bozell Worldwide, Inc. (Bozell) during the “Tobacco is Whacko” campaign. Bozell meeting reports and memoranda suggest that Lorillard made sure to soften the anti-smoking message. The advertising agency stated in a report that the, “Client wants Agency to work on alternative layouts for this execution, in particular, Client wants to see ‘If you’re a teen’ as a pre-line to ‘Tobacco is Whacko.’” A memo to Lorillard reads, “We have added the ‘If you’re a teen’ line per your request.” Bozell itself also proposed ways that Lorillard could disseminate the idea that tobacco is for adults, and, disconcertingly, ubiquitous among adults. A presentation by Bozell addressed how to get an anti-smoking message to “edgy,” “rebellious” teenagers. Bozell suggested that Lorillard should “show [teenagers] smoking is tired” and that “It’s not unique, everyone’s doing it!”
The public’s reaction to “Tobacco is Whacko”
The message that smoking is a symbol of maturity was not lost on many who saw the “Tobacco is Whacko” campaign. A joint-letter on behalf of the American Cancer Society, the American Heart Associations, the American Lung Association, and the Campaign for Tobacco-Free Kids implored the National Basketball Association’s then Commissioner David Stern to drop Lorillard as a sponsor for a Hoop-It-Up basketball tournament. The letter discussed an unpublished study where the “Tobacco is Whacko” campaign was shown to have no affect on teenagers and that the campaign slogan actually encouraged teenagers to smoke. The letter also stated that the slogan frames smoking as an “adult activity,” which tempts teenagers to smoke.
A concerned teenager also saw the slogan framing smoking as an adult activity. Erin L. Osborne wrote a letter to Lorillard, asking, “So, why is tobacco only “whacko” for teenagers? In my opinion tobacco is deadly for anyone, not just teens.” Lorillard, however, did not take notice of Ms. Osborne’s primary concern. A follow-up memorandum only took account of Ms. Osborne’s expression of respect for Lorillard’s other anti-smoking efforts, “I think this is positive feedback that will go a long way and show our commitment in our efforts to reduce underage smoking.”
Lorillard not only provided a pro-smoking message to a young audience, it also collected data on the youth. Lorillard was given marketing access to an audience that it was normally prohibited from addressing, including Marvel Comics and DC Comics readers. The “Tobacco is Whacko” campaign encouraged teenagers to visit Lorillard’s website to fill out surveys and register for sweepstakes. This allowed Lorillard to develop teenage mailing lists and collect psychographic data that could be used to “develop consumer psychological profiles.” One group of researchers asserted that Lorillard used “Tobacco is Whacko” as “cover for continuing to contact and study teens.”
Lorillard’s internal discussion of “Tobacco is Whacko”
Lorillard conducted a focus group on the “Tobacco is Whacko” advertisement with ten to fifteen year olds. The youth in the focus group did not like the slogan because it seemed “cheesy,” and they did not like the “If You’re a Teen” line because they thought it should apply to all ages. Victor Lindsley, Lorillard’s Group Brand Director, expressed reservations about the “If You’re a Teen” tagline after reviewing the focus group results. He wrote an email to Ronald Milstein, Lorillard’s General Counsel, “Has Marty reacted to the research results? I’ve heard nothing.” Marty refers to Martin L. Orlowsky, Lorillard’s President and Chief Executive Officer. He continues, “Before we move too far ahead I want to be sure that he knows exactly what we are doing next, especially as it relates to the tagline. Have you had any more thoughts about dropping the “if you’re a teen” part? I’m still very uncomfortable about it.”
Lindsley was concerned about the tagline’s problematic message, which the young focus group understood as implying smoking is okay for adults. Milstein brushed aside Lindsley’s concern a little over an hour later. Milstein replied, “Marty’s only comment to me was that he did not want to hear again about the tag line – ever- and that I should not be influenced by the creative complainers. We made the decision based on legitimate business concerns and we must stick by it. I think I told John all this and gave him the green light to proceed on everything else. Please check with him.” Orlowsky himself determined that the tagline did not warrant further consideration. Lorillard clearly knew of the problems with the tagline, from its CEO to the children in its focus group, but did nothing to address the issue. As a result, thousands of children were exposed to the dubious anti-smoking advertisement from the late-1990s to mid-2000s.
Note on Citation
All citations to internal tobacco company documents are cited by Bates Numbers, which refer to the Legacy Tobacco Documents Library at http://legacy.library.ucsf.edu. Citations to comic books follow the following format: [writer] & [editor], [issue title], [volume number]:[issue number] [comic series title] [page number] ([publisher] [date of publication]).
 J.W. Richards ET AL., The tobacco industry’s code of advertising in the United States: myth and reality, 5 Tobacco Control, 295, 302 (1996).
 Id. at 307.
 Alan Grant & Dennis O’Neil, Saturday Night at the Movies, 1:459 Batman, (DC Comics Feb. 1991).
 The PSA ran in comic books including Roger Stern & Mike Carlin, Friends in Need, 1:673 Superman in Action Comics, (D.C. Comics Jan. 1992), and William Messner-Loebs & Dick Giordano, The Barry Allen Foundation, 2:58 Flash, (D.C. Comics Jan. 1992).
 Doug Moench & Dennis O’Neil, Faces of Death, 1:485 Batman (D.C. Comics Oct. 1992).
 Electronic Email Interview with Dennis “Denny” O’Neil, Editor, Batman (March 6, 2014).
 Electronic Email Interview with Scott Peterson, Editor, Batman (March 6, 2014).
 William Egenbarger, America’s New Merchants of Death, Reader’s Digest 67 (April 1993).
 Id. at 69.
 Brenda Follmer, Reader’s Digest Memorandum, March 12, 1993, Bates No. 526105794/5802.
 Barry Holt, Memorandum: News Flash – Reader’s Digest Tobacco Story, March 17, 1993, Bates No. 2046854173A/4176.
 Helen Lok, Philip Morris Asia Incorporated Memorandum, Dec. 30, 1987, Bates No. 2504047181/722.
 Helen Lok, Philip Morris Asia Incorporated Memorandum, Jan. 19, 1988, Bates No. 2504047143/7180.
 Marking Research Report, In Depth Research & Management Consultants Sdn Bhd, 1991, Bates No. 2504035932/6053.
 Post Evaluation Test of Lucky Strike’s Advertising and Promotion Activities, Dynamic Search Sdn. Bhd., Sept. 20, 1989, Bates No. 464564473/4648.
 Id. at p. C9.
 Id. at p. A1.
 N. Udagwa, Philip Morris Kabushiki Kaisha Adult Comics Memorandum, Jan. 29, 1993, Bates No. 2504024714.
 Readership Composition from Jan. 1992-Dec.1992, Philip Morris, 1993, Bates No. 2504024715/4716.
 Id. Advertisement In Young Jump, R.J. Reynolds, 1993, Bates No. 2504024708.
 Readership, supra note 27.
 Udagwa, supra note 26.
 Timothy J. Lindon, Philip Morris Asia Incorporated Adult Comics Memorandum, Feb. 1, 1993, Bates No. 2504024712.
 Timothy J. Lindon, Memorandum From Counsel To Employee Providing Legal Advice Regarding Regulations And Placement Of Cigarette Advertising Media In Japan; Lark Advertising, January 27, 1993, Bates No. 250424713.
 Lee Pollak, Japanese Advertising Memorandum, Feb. 11, 1993, Bates No. 2045680353/0354.
 Id. at 2.
 Id. at 1.
 Dinny Devitre, Japan Advertising Memorandum, Feb. 12. 1993, Bates No. 2045680356.
 Geoff Bible, Japan Advertising Memorandum, Feb. 1993, Bates No. 2045690355.
 N. Udagwa, Philip Morris Kabushiki Kaisha Adult Comics Memorandum, Feb. 12, 1993, Bates No. 250424705.
 Anon., Magazine Readership in Japan, Philip Morris, 1993, Bates No.2504024706/4707.
 Holt, supra note 16.
 Lorna Schmidt, Big Surprise: Tobacco Company Prevention Campaigns Don’t Work; Maybe It’s Because They Are Not Supposed To, Campaign for Tobacco-Free Kids 1 (July 30, 2013) http://www.tobaccofreekids.org/research/factsheets/pdf/0302.pdf.
 Id. at 3-4.
 Id. at 2.
 Adam Warren & Joe Quesada, The Ever-Lovin’, Blue-Eyed End of the World Part 3, 3:58 Fantastic Four, (Marvel Comics, Oct. 2002); Alfred Kamajian & Dan DiDio, The Bird Cage Bandits, 1:41 Batman: Gotham Nights, (D.C. Comics, July 2003).
 Anon., Smoking-Cigarettes and Advertising, Brown & Williamson Tobacco Co., 1978, Bates No. 680559692/9699.
 T.L. Achey, Memorandum on Product Information, Legacy Tobacco Documents Library, Aug. 30, 1978, Bates No. 03537131.
 Alison Jaffe, Bozell Worldwide Inc. Meeting Report, Legacy Tobacco Documents Library, Aug. 19, 1999, Bates No. 80302367.
 Alison Jaffe, Bozell Worldwide Inc. Memorandum Re: Tobacco is Whacko Materials, Legacy Tobacco Documents Library, Bates No. 99124748.
 Bozell World Wide Inc. Presentation, July 25, 2000, Bates No. 98277973/8039.
 Id. at 12.
 John R. Seffrin, ET. AL., Letter to David Stern, Campaign for Tobacco-Free Kids (July 19, 2002) http://www.tobaccofreekids.org/pressoffice/sternletter.pdf.
 Erin L. Osborne, Letter to Lorillard, November 15, 1999, Bates No. 81617692.
 Don Kisling, Memorandum on Youth Smoking Prevention Program, Dec. 6, 1999, Bates No. 81617691.
 Anne Landman, Pamela M. Ling, & Stanton A. Glantz, Tobacco Industry Youth Smoking Prevention Programs: Protecting the Industry and Hurting Tobacco Control, 92:6 American Journal Public Health 917, 923. (2002).
 U.S. v. Philip Morris USA, Inc., 449 F. Supp.2d 1, 670, (D.D.C. 2006) (the opinion has been broken up into six sections, and this section is Part 4 at 2006 WL 2381449).
 Victor Lindsley, YSPP Email, April 4, 2000, Bates No. 97011359.
 Ronald Milstein, YSPP Reply Email, April 4, 2000, Bates No. 97009996.