## I LLINOIS 

## O FFICIAL 

## R EPORTS Appellate Court

People v. R.J. Reynolds Tobacco Co. , 2011 IL App (1st) 101736

Appellate Court Caption THE PEOPLE OF THE STATE OF I LL INO IS, Pla

intiff-A ppellant
, v. R.J. REYNOLDS TOBA CCO COMPANY, Defendant-Appellee (Philip Morris, Inc. ; Americ an Tobac co Compan y, I nc.; Br own and Will

i amso n Tobacco Corporation; Ligge tt & Myers, I

nc.; Lor i llard Tobacco Co mp an y, Inc.; United States To ba cco Compa ny; B.A.T. I

ndustrie s, P.L.C.; British American

Tobacco Company , LTD; Hill and Knowlton, Inc.; The Council for

Tobacco Research-U.S.A.; and Tobac co Institute, Inc., Defenda

nts).

District & No. First District, Fourth Division Docket No. 1–10–1736

Filed June 30, 2011

Held (Note: This syllabus constitutes no p ar t of the opinion of

the court buthas been prepare d by the Reporter of Decisions for th e

conven ience of

th e reader.) On appeal from proceedings arising fr om a motion for a rule to sho w

cause why defenda nt tobacc o company

should notbe held in contempt for violating a consent decree prohibiti ng the c ompan y from usi ng a cartoon in a promo tional ca mpaign, the appe

llate cou rt held th at th e images defenda

nt used in its c ampa ign published in a magazine were
cartoon s, since the y de

picted ma n-made o bjects with unnatur

al abilitie s, and thereby violated the

“Ban on Use of Cartoons” provision of the settlement

agree ment inco rporate d into the consent decree, and the trial court did not

abuse its discretion in striking sanctions when defendant

su sp endedthe campaign, but the cause was re manded for a dete rmin ation of the amount of attorney fees and costs that would be appropriate as relief for the violation.-2-

Decision Under Review Appeal from the Circuit Court of Cook County, No. 96–L

–13146; the Hon. D ennis J. Bu rke, J udge, p resid ing.

Judgment Affirmed in part and reversed in part; ca use remanded.

Counsel on Appeal Lisa Madiga n, Attorne

y General , of Chica

go (Mi chael A . Scodro, Solic itor G eneral, and Paul Berks, Assistant Attorney General, of counsel), for the People.

Kirkland & Ellis LL

P, of Chicago (Andrew R. McGaan, P.C., and Rana Bara k at, of c oun sel ), a

nd Jo nes Day , of

Was hin gto n, D .C. (No el J. Francisco and Hashim M. Mooppan, of counsel), for appellee.

Panel JUSTICE STERBA delivered

the judg ment of the

court, with opinion. Presiding Justice Lavin and Justice Pucinski concurred in the judgment and opinion.

OPINION

¶ 1 This appeal arises from R.J. Reynolds Tobac co Company’s (Rey nolds) ad vertisem ents in Roll ing S tone mag azine’s F ortieth A nniversa ry issue and

images Rey

nolds used

in its “Camel Farm” promotional campaign. The State of I llinois filed a motion for a rule to show

cause why Rey nolds should not be held in cont empt for violating a consent decree when Reynolds used a “c artoon” in its “Came l Farm” campaign. The State contends that the circuit
court erred w hen it ruled that Rey

nolds did not use a “cartoon” because the imag es in the “Camel Farm” advertisements did not portray superhero-like powers. The State also claims that Reynolds violated the consent dec ree when Rolling Stone used a “cart oon ” in its editoria l, which was located in close proximity to Rey nolds’ advertisement in the magazine. The State con

tends tha t Rey nolds had a

n affir mativ e duty

to inform R

olling Sto ne that it could not use a “cartoon” in its publication near Reynolds’ adve rtisements. For the reasons that follow, we affirm in part and reve rse in part and remand the cause for f urther procee dings.

¶ 2 BACKGROUND ¶ 3 Rey

nolds is a leading manufacturer of

tobacco products . In N ovember

1996, the Stateof-3-

Illinois along with 39 other states sued Rey nolds and other tobacco manufacturers seeking damages and injunctive relief a lleging that the to

bacco ma nufactu rers inte ntionally targeted minors through their marketing and promotional campa igns and that they

concealed from the public information regarding the harm ful heal th impactsof smoking

and the a ddictive ness of nicotine. On Novem ber 23, 1998, Reynolds executed a master settlement agreement (MSA) with designated State officials from the 40 states tha t initiated the litig ation ag ainst it. The MSA

included a “Prohibition on Youth Targeting” provision, which prohibited the promotion or

marke ting of t

obacco productsto individu als under the age of 18. The

MSA also prohibited Reynolds from the “use or cause to be use d any Cart oon i n the a dvert isin g, promo ting, packaging or labeling of Tobacc o Products .” The MSA in section II , subsection (l), def ines the te

rm “car toon” as: “any drawing or other depiction of an object, pe rson, animal, cre ature o r any similar caricature that satisfies any of the following criteria: (1) the u se of com

ically exagg erated

featur es; (2) the attri

bution of h

uman cha racter istics to a nimals, plants or other objects, or the similar use of anthropomorphic technique; or (3) the a ttrib ution of un natu ral o r ext rah uman abil

ities, such as imper

viousnessto pain or injury, X-r

ay vision, tunneling at ve ry high speeds or transformation. The term ‘Cartoon’ includes ‘Joe Camel,’ but does not include any dra wing or other depictio n that on July

1, 1998, w as in use i n any State in a

ny Pa rticipat in g Manufacturer’s corpora

te logo o r in any Participating

Manufacturer’s Tobacco Product packaging.” ¶ 4 Re ynolds and the Stat e executed a consent decree adopting the MSA’s provision s, including the prohibition on the use of “cartoons” and the definition of a “ca rtoon.” On December

8, 1998, the circuit court approved and entered the c onsent decree and final judgmen t. The circuit court retained juri sd iction to implement and enforce the consent decree. ¶ 5 Reynolds released a new promotional campaign in 2006 called the “Camel Farm,” which

was cre ated to sh ow Rey

nolds’ sup

port of in depende

nt music and record labels. As part of the “Camel Farm” campaign, Rey nolds sponsored c oncerts , created a “Camel Farm” website,
sent direct ma

ilings, a nd place d advert

isements in prin t media, including Rolling Stone’s Fortieth Anniversary

issue published on November 15, 2007. ¶ 6 Rey

nolds’ adve rtisemen

t in Rolling Stone was entitled “the FARM [F]REE RANGE MUSIC.” “COMMITTED TO SUPPORTING & PROMOTING INDEP ENDENT LABE LS ”

was printed in the advertisement. “T HE BEST MUSIC RI SES FROM THE UNDERGROUND” was stated in a banner. Beneath the ba nner in a box was the following language: “The world of indep endent music is constantly changing. New styles and sounds emerge daily. That’s why we’re bringing y

ou The F ARM. A collaboration between C amel and in depen dent a rtis ts and record label s. It’s o ur way of su pport ing t hes e innovators as they rise up to brin g their sounds to the surface. We give them more opportunities to be hear

d throug h online mu sic and c ountless events across the nation.”1 The following eight stat es in iti ate d simi lar clai ms against Reynolds : Maryl and, New York,

Connec ticut, Califor

nia, Was hingto n, Maine , Ohio and Pennsylv ania. A settlemen t agreement was executedbetween Reynolds and the following states: Maryland (agreem ent executed on January

26, 2010); New York (agreement ex ecuted on March 23, 2010 ); and Connecticut (ag reement executed

on March 24, 2010). The California Court of App eals held that the im ages in the “ Camel Farm” campaign were a “cartoon” beca use the imag es depicted objects with unnatu ral abilities. In re Tobacco Cases I, 111 Ca

l. Rptr

. 3d 313, 318 (20 10). The Washington Court of Appeals held that the photo collage ima

ges in the “Cam

el Farm” cam

paign violated the plain languag e of the MSA and

werea “ca

rtoon” b ecause the imag ery “depends entirely upon suspension of the laws of nature.” State v. R.J. Reynold

s Tobacco Co. , 211 P.3d 448, 453 (Wash. Ct. Ap p. 2009). The Washing

ton Court of Appeals also held that “Reynolds did not affirmative

ly cause Rolling St

one’s u se of cartoons” because “[ n]o pro vi sion of the MSA or the consent decree applies to or imposes restrictions upon third parties.” Id . at 453. The Comm onwealth Court of Pe

nnsylvania he

ld that the images in the “Came

l Farm” cam

paign were not

a “carto on” bec ause the

imag es did n ot “illu strate

-4- ¶ 7 The image s in the “Ca mel Far m” adver tisement f

ocused p rimarily on a music an d entertainment

theme by display

ing radios and speakers rising from the grass on top of flower stems, film reels as tire s on a tractor, a re cord pla ye r place d on top of a

tractor and a ra dio bearing prop eller s flying throug h the sky. The imag es were set in a green g rassy pasture meeting a serene blue sky . The images also created a r etro feel because the tractor, r adios and speakers looked old-fashioned. ¶ 8 Rey nolds’ adve rtisement in Rolling Stone was a “g atefold” advertisement tha t encompassed

four pages, including a front pa ge, two pages that folded inwar d and met in the middle and a back page. To ac cess a Rolling Stone editorial, a reader had to ope

n and unf old outwardboth of Reynolds’ folded pag es, one of which opened outward to the right and the other opened outward

to the left. Rolling Stone’s editorial encompassed five page s, four of which were on

the reve rse side o f Reynolds’ “g atefold” advertisement. Rolling Stone’s editorial was entitled “Indie Rock Univer se” and consisted of hand-drawn ca rtoon im ages and captions, such as “Angry Red Plant–Fight the Power Against Me!,” “The Bearded Men of Space Station Eleven–The final frontier of awesome f acial hair,” and “The Bea

rded L adies of Space Station Eleven–She came from Planet Claire–or maybe she’ s just kind of weird.” Reynolds did no t create

the imag es in Rollin g Stone’ s editoria l. ¶ 9 The images in a video created by Reynolds and sh own at concer ts in Chica go contained images of farm animals, a woman with numerous tattoos and blue hair, a woman with brig ht redhair, a r

adio with affixed propellers fly

ing across the screen and

a tracto r with film

reels for tires and emitti ng music al notes f rom a record player plac ed on top o f it moving across the screen . Rey

nolds also create d a website that wa s found at http://www .thefar

mmusic.co m. The website contained i mages o f bir ds, butterflies and appearing on eac h screen of the website w as a tra

ctor with airplane propellers atta

ched to it

. ¶ 10 On December 4, 2007, the State filed an “E me rg en cy Motion to Enforce the Consent Decree and Fina l Judgment

and the Ma ster Settl ement Ag reemen t, for a Rule to Show Cause, for a Temporary

Restraining Order, and for Penalties and Sanctions Against R.J. Reynolds Tobac co Co.” 1 The State alleged that Rey nolds “used or has caused the use of numerousthe types of super-he ro-like powers that are particularly attractive to yo

uth.” Commonwealth ex

rel. Fisher v. Philip Morris, Inc. , 4 A.3d 749, 756 ( 2010). The Pennsylvania court also stated that “[n]othing in the “ Camel Farm’s surr ealistic, photog

raphic, sophis ticated imag ery ca n be sai d to encompass the allure of cartoons, le t alone meet

the definition

contained in the MSA. ” Id . Focusing

on the image s in the Rolling S tone editorial, the Ohio Court of Appeals held that R

eynolds did not engage “i n affi rmative conduct such that it us ed or caused to be u sed the cartoons in the R olling Stone editorial content.” State ex rel. Corday v. R.J. Reynolds T obacco Co. , No. 09AP–259, slip o p. at 8 (Ohio Ct. Ap

p. Jan. 14, 2010). The Maine circuit court ruled that the “Came

l Farm” im

agery was not a “cartoon” because “[n ]one of the Cam el Farm im

agery inv olves any o f the ‘ s uper-her o’ like powers embraced” with

in the “cartoon” definition. State v. R. J. Reynolds Tobacco Co., No. CV–97–1 34 (Me. Jan. 9, 2009).

-5- Cartoons in its advertisemen ts for Ca mel cigarettes by

purchasing advertising involving Cartoons in the November 15, 2007 Fortiet h An niversary E

dition of Rolling Stone Magazine; featuring Cartoon images on a promotional web s ite RJR created; and displaying Car toon images at a

free promotional concert within the State.” The State soug ht the relief

provided for in the MSA consisting of injunctive re lief, mone ta ry pay ments, cy pres remedies, and
costs and attor

ney fees. Specifically, the State sought a civil sanction of $6.5 million based

on the followi ng: “(1) $100 for each of the estimated 65,700 copie s of the Rolling Stone Magazine 40th Anniversary issue distributed in the State; (2) $100 for each I llinois resident registered on ‘The F arm’ website; and (3) $100 per concert attenda nt for the impermiss ible use of Cartoon advertising at the November 21 Conce rt.” ¶ 11 The circuit court entered an agr eed o rder on December

5, 2007, whereby

the parties agreed that the State would withdraw the temporary restraining order

and other emergency relief set forth in its motion because Reynolds agreed to: “(i) susp end distr ibution of music CDs, (ii) no longe

r use Came

l Farm ima

gery at musicevents and (iii) suspend operation of thefarmrocks.com

website, until this ma

tter is re solved.” Rey

nold s a lso agreed to suspend use of the “Camel Farm” image ry in print advertising

for the remainder of 2007. ¶ 12 Reynolds filed a motion to dismiss asserting that the State failed to abide by the detailed processof presuit consultation and negotiation and 30-day

written notice set forth in the
consent decree and MSA be fore fil ing its mot ion. Rey nolds also

asserte d that I

llinois contempt law precludes the State’s requested relief of $6.5 million in punitive damages and that Reynol ds did not violate the consent decree or MSA. Rey nolds requested the circui t court to strike the State’s r

equest f or moneta ry damage s. On Septe

mber 3, 20 08, the ci

rcuit
court denied Reynolds’ m otion to dismiss, but struck the State’s $6.5 million sanction request because the requested sanction was punitive in nature and, thus, unavailable in the civil conte mpt p roceed ing. The circuit court reasoned that the State’s requested $6.5 million sanction was to punish Reynolds for its allege d violation of the consent decree. The circuit
court also stated that

the State’s claim that

Reynolds violated the consent dec ree amounted
to a breach of contac t cla im and punitive damages are not recover able in such contractual claims. ¶ 13 On February

9, 2009, the State and Reynolds e xecuted a stipulation regarding the pending litigation. The parties stipulated that “Rey nolds did not prepare or previewthe five pages of2 Ejus generis stands for the proposi

tion tha t “when a statu tory clause specifically desc

ribes several classes of

persons or things and then includes ‘other p ersons or things,’ the wo rd ‘othe r’ is interpreted as meaning

‘other such like.’ ” People v. Da vis , 199 Ill. 2d 130, 138 (200 2) (quoting Farley v. Marion Pow er Shovel Co. , 60 I ll. 2d 4 32, 43 6 (1975 )).

-6- illustrations entitled ‘Indie Rock Universe’ that appeared in the November 15, 2007, Fortiet h Anniversary

issue of Rolling Stone.” The parties also stipulated that “There is no evidence that Reynolds or any Rey

nolds employee or

agent, specifically

intended to create advertising copy containing

‘cartoons’ in violation of the MSA an d/or Conse

nt Decre e, or spe cifically intended for Rolling Stone to publish ‘ cartoon s’ in its ed itorial c ontent ad

jacent to Reynolds’ adver tising copy in violation of the MSA and/or Consent Dec ree.” The parties further stipula te d that “The State had not identified any provision of the MSA and/or Consent Decree that appl ies to, or imposes restrictions upon, third-parties–including consumer magazines such as Ro lling Stone–indepe ndent of th e obligations imposed directly upon a Participating Manufacturer.” ¶ 14 After an evidentiary hearing, the circuit cou rt entered a written memorandum opinion and order on January 15, 2010. Focusing on the prohibition against Reynolds to “use or caused
to be used” a “cartoon” and the “ cartoon” images that Rolling Stone used in its editorial, the circuit court held that Rey

nolds did not violate the MSA because it had no duty to inform publishers about the

“carto on” ban. The State

filed a mo tion to rec onsider b ecause the circ uit court’s order di d not rule on whether the images used in the “Camel Farm” campaign wer

e “cartoons.” The circuit court granted the motion for reconsideration. On May 19, 2010, the circuit court issu ed a supp lemental order f inding th at Rey

nolds’ ima

ges we re not “c artoons” because the imag es did

not depict superhero-like powers similar to the examples listed in the definition of “imperviousness to pain or injury, X -ray vision, tunneling at very

high speeds or transformation.” The State timely appealed.

ANA LYSIS ¶ 15 The State contends on appeal t hat t he images display ed in Reynolds’ “Camel Farm” advertisem ents wer e “car toons” asdefined

by t he conse nt decree and MSA. The State maintains that the c ircuit

court erred w hen it ruled that Rey

nolds’ ima

ges we re not “c artoons” because the images did not project superhero-like abilities. The State claims that

the “Camel Farm” promotion was alluring to young smokers because i t p ortraye d Camel as the “cool/hip” brand of

cigar ettes tha t sponsors “cool/hi

p” music g

roups. The State

contends that the purpose underlying

the “cartoon” ban was to prevent tobacc o compan ies f rom using “unnatur al” or “extra-human” characteristics to target y ouths and the prohibition should not be constr ued narr owly to ban only

imagesthat portr

ay superhe ro-like p owers. ¶ 16 In re sponse, Re yno lds claimsthat the “ Camel Fa rm” images do not po rtray thesuperherotype powers included

as example s of “ca

rtoons” in the consent decree and MSA’s definition of that term. Employing the c anons of statutory inte rpretation of ejusdem generis 2 and3 Noscitur a socii s is a doctrine prov

iding that “[t]he

m eaning of questionab le words or phrases in a statute may

be ascertained

by reference

to the meaning

of words or phrases associated with it.” Hayes v. Mercy Hospita l & Medical C enter , 136 I

ll. 2d 4 50, 47 7 (1990 ).

-7- noscitur a sociis
, 3 Reynolds cla

ims that onl

y images display

ing abilities of a similar

or like kind to “imperviousne ss to pain or injury, X-ra y vision, tunneling at ver y high speeds or transformation” are prohibited. Rey nolds also claims that “unna tural or extrahuman abilit ies”

con sists of on e uni tary

phra se no t inte

nded to mea n unna tura l abil ities or ext

rahuma n abilities

. Reynolds maintains that the “imperviousness to pain or injury, X-ray vision, tunneling at very

high spe eds or tr

ansformation” c haract

eristicsmodify

the term “ abilities ” and are examples of “unnatural or extrahuman abilities.” Sincethe “Camel Farm” images do
notcontain s uperher

o-like po wers, wh

ich would be allur ing to youths, Rey

nolds claims that its images are not

“cartoons.” Rey

nolds also claims that although it waived any constitutional claims, including the right to fre e speech, in the MSA, the waiver’s langua ge must be narrowly c onstrued. ¶ 17 A consent d

ecree entere d by

a court a dopti ng a se ttlement a

greement is considered

a contract. People v. Scharlau , 141 Ill. 2d 180, 195 (1990). Consent decrees should not be characterized

as a court order, but instead a contractual ag reement “controlled by

the law of

con tracts.” Id . A consent decree must be interpreted g iving effect to the words used in th e decreeand the parties’ intention underly ing the decree. Allied Asphalt Paving Co. v. Village of Hillside , 314 Ill. App. 3d 138 (2000). The interpretation of

a contract involves a question of law, and as such, we employ a de novo standard of review. International Supply Co. v. Campbell , 391 Ill. App. 3d 439, 448 (2009). ¶ 18 The term

“carto on” is def

ined in se ction I

I, su bsection (l), of th e MSA as: “any drawing or other depiction of an object, pe rson, animal, creatur e or an y similar caricature that satisfies any of the following criteria: (1) the u se of com

ically exagg erated

featur es; (2) the attribution of human characteristic s to animal s, plants o r other o bjects, or the similar use of anthropomorphic technique; or (3) the attri

bution of u

nnatura l or extrah

uman abil

ities, such as imp erv iousness t o pain or injury, X-r

ay vision, tunneling at ve ry high speeds or transformation.” ¶ 19 Rey nold s’ images in Rolling Stone do not depict “comically exaggerated fea

tures ” o r “the attributi on of huma

n chara cteristi cs to animals, plants or other obj ects, or

the simila r use of anthropomorphic technique.” The third criterion is releva nt here, which is “the attribution of unnatura l or extr ahuman ab ilities” to an object, person, animal, creature or any similar caricature. Relevant to this appeal is understanding the meaning of the term “unnatural.” ¶ 20 The MSA does not define the term “unnatural.” An undefined term

in a contract may

be either ambiguo us or unam

biguous . A term is “ ambiguous only if it is rea sonably

or fairl y suscepti ble to more than one interpretation.” Allied Asphalt Paving Co. , 314 Ill. App. 3d at 144. The inab ility

of parties to agree to the

meaning or application of a term, however , does
notrender the term ambiguous. Id . An unambiguous term “convey s a cle ar and de finite-8-

meaning.” Department of Correc tions v. Civ il S ervice Comm’n , 187 Ill. App. 3d 304, 309 (1989). T he term “ unnatura l” inthe definition of “cartoon” is not ambiguous. As such, the
term“unnatur

al” is defined a ccordi ng to i ts pl ain an d ordi nary meani ng. Covinsky v. Hannah Marine Corp. , 388 Ill. App. 3d 478, 484 (2009). The plain and ordinary meaning of the term “unnatur al” is: “1. Contrary to the

laws or course of nature. 2. At variance with the character or

nature of a person, animal, or plant. 3. At variance with what is normal or to be expected: the unnatural atmosphere of the place. 4. L acking human qualities or sy mpa thies ; monstrous ; inhuman; an obsessive and unnatural hatred. 5. Not genuine or spontaneous; artificial or contrived; a stiff, unnatural manner. 6. Obs . Lacking a va lid or na tural cla

im; illegitimate.” Webster’s Unabridged Dictionar y 2081 (2d ed. 1998). ¶ 21 Images of objec ts in the “C amel Farms” advertisement are “unn atural” and, thus, constitute a “car toon,” asdefined

in the MSA. While a woman driv ing a tractor with film reels for tire s is “unna

tural” b ecause

it varie s fr om wha t is n ormal or ex pected , thi s image has the potential to be engineered and thus does not depict an unnatural ability. How ever, an eagle flying with a ha

nd prot ruding fr om a pictu re fra me clutch ed in the e agle’ s claws is “unnatural” because it varies from wha t is normal or expected. ¶ 22 Moreover, the images of radios, spea kers and a television, which have a unify ing tra it of emitting sound, are also “unnatural.” I n the adverti sement, r

adios, speakers and a television

are each placed on a plant stem to resemble flower s and to be representative of se edlin gs rising from the underg ro und. This “ flower” image i s sy mbolic of independ ent music t

hat, according to the language in the banner a d jac ent to the “flowers,” “rises from the

un derground.” The “Cam el Farm ” promotio n expressl

y c ommunica

ted to music

fans tha t Reynolds supports independent music innovators “as they rise up to bring their sounds to the surface,” which was portray ed in the advertisement by de picting man-made objects, such as radios, speakers and a television, as growing from the underground and rising to the surface, much like a seedling growing from the underg round and rising to the surface as a flo wer . In the adverti sement, th

e “flowe rs” cont inue to g row and t hen deve lo p o r bloom pr

opeller s, which is evident by the place ment of a propeller on top of a “radio flowe r” that is still attached to its stem. This developm ental ch ange o f the “f

lower” r eflectsthe advertisement’s langua ge stat ing that the “wor ld of independent

music is constantly changing.” In the fina l stage of developmental change for the “ flower,” the “flower” bec omes airborne, which is als o evident by the radio bea

ring a propeller soaring throug h the sky much

li ke a b ir d o r b ut te rf

ly. ¶ 23 It is significant

to note the placement of three birds on top of the sound-emitting devices
, an eagle soaring through

the sky above the

man-mad

e object s and butte

rflies f lying next to the propel led radio. T hese cr eature s all fly , and rad

ios on the “ Camel Fa

rm” do as well. Indeed, it is bey

ond mere coincide nce th at the ra dio which sprouted propellers is fly ing through the sky in close p

roximity to two butterflies, which are commonly recognized

as a symbol of transformation and ch a nge. A butterfly ’s transf ormation f

rom a ca terpilla r is a natural process, unlike the growth and transformation of the “flowe rs” here, which

depict an unnatural ability. The transforma tion of the man-made objects described above is unnatural because it is contr ary to the law s or cour se of

nature and varies from what is normal or to be

e xpected. Be cause of

the unnat ural abi lity

of the obj ects por

tray ed in the a

dvertise ment to-9-

transform into a flying

“flower,” the advertisement is a “ca rtoon.” ¶ 24 The images of these man-mad

e object s in the ad

vertisem ent in conjunc ti on with

the advertisement’s express language crea te a uniform theme of change and tr ansformation. The “Camel Farm” a

dvertise ment is a “ cartoon ” not only because of the unnatural ability of the objects portraye d in the adver tisement to grow like “flowers,” but also because of the objects’ transformation depicted in the advertisement. Transformation was expressly listed

as an example of an “unnatural or extrahuman ability ” in the definition of “cartoon.” Similar
to the term “unnatural,” the term “transformation” is a lso unambiguous. The plain and ordinar y me aning o f the ter

m “transf ormation”

is: “1. The act or

processof trans forming . 2. The st ate of be ing tra nsforme d. 3. Chang e in form, appearance, nature, or character.” Webster’s Unabridg ed Dictionary 2010 ( 2d ed. 1998). ¶ 25 As stated above, the pictorial set forth in the “Camel Farm” advertisement depicts four stag es of the transformation of a man-made object into a “f lower.” The first stage of th e transformation presumpt

ively is the seedling stage. Next, a stem and flower bud g row from the seedling to rise up above the ground. Then, the “flowers” sprout propellers. Finally , the “flower s” with an attached propeller break from their stems and tak e flight, which is demonstratedby the propelled r adio flying thr

ough the sky. This transformation providesa visual image o f the “Ca

mel Far m” campaig

n that supp orts the “world of independent music, [which] is constantly changing .” ¶ 26 Reynolds contends tha t the unnatural or extrahuman abilities portion of the “cartoon” definition should be limited to superhero-like powers and that “unnatural or ex trahuman abilities ” should be interpreted as a unitary phrase. Although superhero-like power s may be characterized

as unnatural or extrahuman, objects having “unnatura l or extrahu man abilities ” should not be limited only to objects having super hero-like powers. If th e MSA’s and
consent decree ’s draf

ters i nten ded to limit “cartoons” to objects having superhero-like powers or ab il it ie s o nl y, t he n s uc h a li mi ta ti on wo ul d h av e b ee n e xp re ss ly p rovided f or in the definitio n. Moreov er, adopting Rey nolds’ re ading o f th e defini t ion of “c artoon” is contrary to the expr

ess lang uage u sed in the

definitio n becau se it conv erts th e disju nctive conjunction “or” chosen by the draft ers into the conjunction “and.” Both unnatural and extrahuman abilities are not required for the depiction of an object to be a “cartoon.” I nstead, the de piction mus t attribute either unnatural or extrahuman abilities to an object. Here, Reynolds a ttributed unnatural abilities to objects. Moreover, the unnatural ability that Reynol ds att ributed to

the objects include d transf ormation, which wa s specif ically

enume rated in the definition of “cartoon” as an example of an unnatura l or extrahuman ab il it y. Reynolds urge s application of the ejusdem generis and n oscitur a s ociss statutory construction doctrine s to interp ret the d efiniti on’s langua ge, but doing so is not necessary since the definition’s language is not ambiguous. B asedon the MSA’s and consent decree’s definition of “cartoon”, the “Camel Farm” a dvertisement is a “cartoon.” ¶ 27 We agree

with the Wa shington

Court of A

ppeals where it st

ated in a companion case

that “the Camel Farm

photo collage does not resemble traditional Disney cartoons, but this is not germane. Disney-ty

pe cartoons were

not the only targ et of the prohibition. Nor is it germane4 Section XV of the MSA addresses the waiv er of constitutional rights, and states the follo wing:

-10- that the effect is thought-provoking rather than humorous.” State of Washington
, 211 P.3d
at 452. The “Camel Farm” campaign was indeed thought provoking and its music-inspired theme would app eal to y

ouths. Thiscourt’s conclusi on that the “Cam el Farm ” campa ign contained“cartoons” upholds the drafters of the MSA’s intent to prohibit images alluring to youths in tobacco adverti sements. The imag es in the “ Camel Fa rm” adverti sements w ould be alluring

to a y outh who a

lso suppor

ts independ

ent music a

nd recor d labels, which like

wise purport to be “constantly c hanging.” ¶ 28 Alth ough the “Camel Farm” advertisement in Rolling Stone contained a “cartoon,” the video and website d

id not cont

ain a “c artoon.”

The State claims tha

t image s in the video were

a “cartoon” because it contained imag es with “comically e

xaggerated feature s” violating the first criteri on of the “ cartoon ” defin itio n. Rey

nolds res ponds that

the imag es were

not a “carto on” bec ause the

images were no t comical

. ¶ 29 The video contained images of a tractor with film ree ls as tires, a

record play er

emitting musical notes placed on the tractor appeari n g to res emble an exhaust pip e, a woma

n with
tattoos and blue hair, a radio moving around th e screen by rotating propellers, flashing images of a Camel and a woman with bright red hair flashing on and off

of the screen. Many images appeared

in the video and then disappeared, while other image s flashed on and off of the scre en and rotated ar ound th e sc reen. N one of the imagesdisplay

ed “comi cally exaggerated

featur es,” esp ecially

in compar

is on to the comicall

y exaggerated fea

tures of “Joe Camel.” The huma

n image s in the vid

e o do not portray any

exaggerated human characteristic s, but rather are normal in app earance, n or are the animals in the video carica tures. The State places emphasis on the blueand red hair of the women depicted in the video and asserts t

hat the c olor choi ces wer

e intende d to be comical. Independe nt music fans viewing this video at a concert would not likely perceive red

or blue hair on a woman as a “comica lly exaggerated fea

ture.” Accordingly , the images in the video are not a “cartoon.” S imil ar ly, the imag es on “the farmmusi c.com” w ebsite we re also n ot a “ca

rtoon” because

none of the images portraye d “comically e xaggerated feature s.” Many of the imag es on the website were the same images included in the video, which as stated, wer e not a “cartoon.” Based on this conclusion, it is not nec essary to address whether

the State acquiesced in the

use of the images or whether the parties’ cours e of perfor mance demonstrates the State’s approval of the images since the images in the vide o we re not a “ cartoon .” Also, th e State didnot view th

e “Camel Farm” adverti sement in

Rolling Stone in its entirety, and viewing isolated images would not adequately reveal the problematic unifying and dominate idea

of change and transformation. As such, Rey nolds lacks a s ufficie

nt basis to c laim that th

e State acquies ced in the

use of the

adverti sement. ¶ 30 On appeal, Reynolds a lso claims thatthe “cartoon” ban constitutes a partial waiver of its first amendme

nt free speech r ights. Reynolds acknowledg es that the MSA contains a waiver of its co nsti tuti onall y protect ed free speech righ t s because it agreed to ref rain from using “carto ons” in the promotion or advertising of its prod

ucts. 4 Reynolds claims, however , that“The Settling States and the Participating Manufacture rs acknowledg e and agree thatthis Agreem

ent is voluntarily

enteredinto byeach Settling State and each Participating Manufacturer

as the result of arm ’s-length n egotiations, and ea ch Settling State and each Participating Manufacturer was represented by counsel in de c iding to enter in to this Agree ment. Each Participating Manufacturer further acknowledges that it understands that certain provisions of the Agreement may require it to act or refrain from

acting in a m

anner thatcould otherwis e giv e rise to state o r f ederal co nstitutional challenges and that, by volun tarily consenting to this Agreement, it (and the Tobacco-Related Organizations (or any trade associa

tions fo rmed or contr

olled by any Participating Manufacturer)) waives fo r purposes of perf

orman ce of th is Ag reeme nt any and all claim s that th

e prov isions o f thi s Agreement

violate the state or federal constitutions. Prov ided, however, that nothingin the foregoing shall constitute a

waiv er as to

the entry of any

court order (or any

interpretation thereof) t hat would ope rate to limit the exerc ise of any constitution al right except to the
extent of the r estrictio ns, lim

itations or o b ligations expressly agreed to in this Agreement or the Consent Decree. ”

-11- the waiver should be narrowly construed and apply

only to speech

that is within the clear and unambiguous terms of the waiver. ¶ 31 As previously stated, the “Camel Farm” campaign published in Rolling Stone conta ins “cartoons.” Reynolds’ image s attributed unnatural abilities, which included transformation,
to obj ects. The

attributi on of those

characteristic s to an object falls s quarely within th e definition of “cartoon.” According to the pe rmanent relief section of t h e MSA, subsection (b), Reynolds may

not“use or cause to be used any Cartoon in the advertising, promotion, packagingor labeling of Tobacco Products.” Rey nolds expressly waived its free speech rights regarding its use of a “cartoon” and the ban on the use of a “ cartoon” falls within the waiver’s clear and unambiguousterms even construing the languag e narrowly as urged by Reynolds. ¶ 32 In sum, Reynolds viol ated the MSA and consent decree because the “ Camel Farm” advertisement

in Rolling Stone consisted of a “cartoon.” The image s in the video and on the website, however, were not a “car toon.” The man-made ob jec ts in the “C amel Fa

rm” advertisement

in Rolling Stone possess the unnatural ability to gr ow and t rans form into “flower s” that ultimately become airbor ne. The MSA adopt ed by the conse nt decree exp r essly and cl early proh ibit ed the use of “carto ons” i n “the advert isin g, prom otin g, packagingor labeling of Tobacco Products.” The c onsent decreestated that the circuit court retained jurisdict ion to implementand enfo rce the consent d ecree and unde rly ing ag reemen t. The consent decree permitted the State to seek an orde r for mo netary, c ivil contempt or criminal sanctions for any claimed violation. The circu it court, however, “in its discretion may determine not to enter an order for monetary , civil contempt or criminal sanctions.” A circuit court abuses its discre

tion if “no

reasona ble pers on would

take the view adopted by the trial court.” Bruce v . Atadero , 405 Ill. App. 3d 318, 323 (2010). The consent dec ree further stated that in any proc eeding resulting in a finding that Rey nolds violated the consent decree, Reynold s “shal l pay the State’s costs and a ttorney fee s incurred by the State of Illinois in such proceeding.”-12-

¶ 33 The circuit court exercised its discretion when it struck the State’s $6.5 million sanction

re quest on the basis that the requested sanction was punitive in nature, which is a remedy availab le in criminal contempt and not ci vil conte

mpt. The c ircuit co

urt did not

abuse its discretion in striking the request for sanctions because civil contempt is coercive rather than punitive in nature and “is designed to bring a defe ndant’s conduct in line with a prior court

or der.” City of Mattoon v. Mentzer , 282 Ill. App. 3d 628, 636 (1996). Here, Rey nolds volunta rily s uspended its “Camel Farm” campaign w hen legal proceedings w ere initiated agains tit. Thus, Reynolds’ conduct beca me consistent with the consent decree’s and MSA’s
terms because i t suspende d use of a lleged “carto ons” in pr

omoting its tobacc o produc ts. According to the consent decree, the State is entitled to costs and attorney fees if Rey

nolds

was found to be in violation of the consent decree. Here, Re ynolds violated t

he conse nt decreebecause

it used a “ cartoon ” in the “Camel Farm” campaign. A ccordingly , this matter is remande d to the ci

rcuit court to dete

rmine the appropr iate rel ief cons istent with

this disposition. ¶ 34 The State also

claims on a

ppeal tha t Rey nolds used

or “cau sed to be used” the cartoons appearing in the Rolling Stone’ s editoria l pagesto promote its tobacco products . The State bases this claim

on the fact that the “Camel Farm” adver tisementwas a gatefold that reader s must touch and open before being able to readthe Rolling Stone editorial. The State contends that Reynolds violated the “ca rtoon” ban because

it neglected to a

dvise Rolling Stone about the ban, whic

h resulte d in Roll ing Stone u sing ca rtoons in c lose proximity to Rey nolds’ adverti sement. ¶ 35 Reynolds responds that it lacked aware

ness that Rolling Sto ne’s editorial wouldinclude
cartoon s. Reynolds claims that Rolling Stone’s editorial was separate from its advertisement and Rolling Stone independ ently produce d the edit

orial. Re yno lds conte

nds that itsinaction
to prevent Rolling Sto ne from in

cluding cartoon s in its editorial does not amount to Reynolds “using or causing to be used” a cartoon. ¶ 36 The MSA’sban on the use of “c artoons”prohibits R eynolds fro m “use or

causing to be used car to ons in th e ad ver ti si ng, pro mo ti ng, pac kag in g or lab eli ng o f to bac co p rod uct s.” If the MSA’s drafters intended to include third parties in the restriction ag ainst using or causing
to be used a

“cartoon,” then the drafters would have expressly included that intention in the provision’s language. For e xample, incorporatedelsewherein the permanent relief section of the MSA is a provision entitled “Limitation on Third-Party Use of Brand Names,” which

s tates in part tha

t “no Part

icipating Manufacturer ma

y lic ense or o therwise

expressly authorize any third party

to use or advertise within any Settling State any Br

and Name in a

manner prohibited by this Agreement if done by suc h Participating Manufacturer itself.” The ban against using “cartoons” includesno such language. I nterpreting thecontract as a whole,

as we must, the prohibition on Reynolds aga inst using or causing to be used a “car toon” was not extended to incorporate a prohibition against a third party from usin g a “cartoon.” The provision’s express language does not impart on Rey nolds an affirmative duty

to ensure that

an independent third party does not use or cause to be used a cart oon i n adve rtis ing, promoting
, pac kaging

or label ing of it s own prod

ucts that a

re distinct from Rey

nolds’ products

. Here, Reynolds asserted that Rolling Stone’s “Indie Rock Universe c ontained no
content previewed, prepared by

or paid for by R.J. Rey

nolds Tobacco Company (R JRT).”-13-

Reynolds also asserted that “Other than being aw are that the topic of Rolling Stone’s g atefold editorial would be independent rock music, RJRT had no advance knowledge a bout the
content or graphic format of Rolling Stone’s g atefold.” This assertionwas s tipulated to between the parties as reflected in sti pulation n umber 10, which sta

tes that “ Rey

nolds did not prepareor preview the five pages of illustrations entitled ‘I ndie Rock Unive rse’ that appeared in the No vember 15, 2007, Fortieth Anniversary issue of Rolling Stone.” Since th e provision’s express language does not place an affirmative duty on Reynolds to inform third parties of the ban against “cartoon” use and Reynolds had no inv olvement in Rolling Stone’s editorial that inc lud ed “car toons,” Re

yno lds did not v

iolate the ban ag ainst “c artoon” use regar ding the “carto ons” dep icted in Ro lling Stone’s edito rial.

¶ 37 CONCLUSIO N ¶ 38 The images Reynolds used in its “Came

l Farm” campaig

n publis hed in R olling Stone consis te d of a “cartoon” because the imag es depicted man-made objects with unnatural abilities
, which inc luded tra nsforma tion. Since

Reynolds used

a “car toon” in “ the advert isin g, promo ting, packagi ng, or labeling of Tobacco Products,” it violated the “B an on Use of Cartoons” provision in the MSA incorporated into the consent decr ee. The circ

uit
court did not abu se its discretion in striking as relief sanctions because Rey nolds suspended its “Camel F arm” ad

vertising campaig n. We rema

nd this ca use to the

circuit c ourt to determine the amoun

t of attor ney fees an d costs tha

t are ap propria te as relie f for Rey nolds’ violation of the consent decree. The images in the video and on the website, however , were nota “car

toon” bec ause th e image s did not portray “c omically exagg erated features.” Reynolds also did no t violate the co nsent decree b y causing a “cartoon” to be used by Rolling Stone in its edito

rial bec ause Rey

nolds had no affirmative dut y to prevent Rolling Stone’s use of a “cartoon.” ¶ 39 Accordingly , the judgment of the circuit court is affirmed in part and reversed in part and the cause is remanded for further pr oceedings consistent herewith. ¶ 40 Affirmed in part and reversed in part; ca use remanded.