Commonwealth Ex Rel. Fisher v. Philip Morris, Inc.

CONCURRING OPINION BY

Judge McCullough.

I write separately because, unlike the majority, I agree with the Commonwealth and would hold that, similar to the Washington and California courts, some images contained within the Camel Farm advertisement do meet the third prong of the definition of “Cartoon” in the Master Settlement Agreement (MSA), as incorporated in the Consent Decree. Specifically, the third prong of the definition includes “the attribution of unnatural or extrahu-man abilities, such as imperviousness to pain or injury, X-ray vision, tunneling at very high speeds or transformation.” A flying radio and a television growing from *759 a plant stem are inanimate objects displaying unnatural abilities that I believe fit within this definition.

Indeed, even under the analysis of the majority in construing that the one trait that unifies all of the abilities listed in the third prong of the definition is that they illustrate the types of super-hero-like powers that are particularly attractive to youth, the flying radio and television growing from a plant stem also convey such appeal. What more super-hero-like ability is there than flying? Further, the majority determines that, taken as a whole, this provision prohibits depictions of “objects” such as Sponge Bob Square Pants, Transformers or “Kitt,” the talking car from the television series “Knight Rider,” that exhibit unnatural powers or superhuman qualities. A radio or television displaying such unnatural powers or superhuman qualities are no less such “objects” than a sponge, a transformer or a car. Contrary to the majority’s finding that the Camel Farm’s surrealistic imagery does not encompass the allure of cartoons, I would hold, as did the Washington court, that it does. Clearly, the intent of the MSA/Consent Decree was not only to address existing public health concerns but to prevent youth from being lured into suffering the same.

However, notwithstanding that there are parts of the Camel Farm advertisement that contain images that fit within the definition of “Cartoon” in the MSA/Consent Decree, I agree with the majority opinion that, at least in this instance, it was a minor, technical violation and that the majority of the images were not cartoons. Hence, the violations were de min-imis and R.J. Reynolds cured the same by ceasing its Camel Farm advertising campaign and voluntarily shutting down the Camel Farm website. Further, I agree with the majority opinion that nothing in the MSA/Consent Decree placed a duty upon R.J. Reynolds to insure that third parties refrain from using cartoons in close proximity to its tobacco advertisements 1 and that the Commonwealth failed to provide any evidence of actual damages or compensable harm caused by the aforementioned violations given R.J. Reynolds’ prompt response to remove the advertisement and add language to its advertising contracts which prohibit placement of future advertisements near or adjacent to cartoons. 2 Therefore, I concur in the result reached by the majority.

. Rather, R.J. Reynolds was required to advise its advertising agency, Kaart Marketing, that its own advertisement could not depict cartoons.

. I note that, unlike the MSA which requires the Commonwealth to provide R.J. Reynolds with written notice prior to initiating litigation with respect to purported violations, the Consent Decree merely requires the Commonwealth to issue a cease and demand letter prior to filing a motion to enforce the same. (Consent Decree, Paragraph VI(A), R.R. at 7a.) While no such letter is evident in the record, R.J. Reynolds did not raise this issue before the trial court or this Court.