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DEN:jb. 45 I IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF P:EW YORK .PHIL.7P N:ORRIS,_ T_NCORPORATED, ) -vs- ~ Plaintiff; ) ~ No. 74 CIV. 2395 ) R, J. REYNOLDS TOBACCO COMPANY ~ 'arid 4IM. ESTY, IIvC,•, ) ) ) Defendants. prudential Plaza Suite 1500 Chicago, Illinois November 18, 1974 9:30 o..'clock a,m. The deposition of JOHN HOWARD BENSON was resumed pursuant to adjournment.

2 APPBA-RANCES : . . F.r, Anthony L. Fletcher, and Mr. otr.y C. ,,uinn, Jr. (Conboy, ii.=thitt, 0 'Eri en & Roardr:an ) 20 Exchange Plaza. New York, New York 10005 appeared on behalf of the Plaintiff; Mr. R, Bradlee Boal (Cooper, Dunham, Clark,.. Griffin & Moran) 30 Rockefeller Plaza New York, New. York 10020 appeared on behalf of the Defendants.

13A and 13B DEFENDANTS' BENSON DEPOSITION EXHIBITS. EXHIBITS MARKED FOR IDENTIFICATION 14A 14B 15 16A and 16B. 1?

.1 t _...~..__ ___ ~ ....._._._....._._...~__, __ 1~ MR. BOAL.:. Last time we were here, we requested °~ certain in; orm-atJ.on and/or r,:ateri2.ls, one *bein, the ~ . ~~.. saaplzr of ?•.ar2bora Lights and ::ar1boro Red, 4 1 wonderedif anyone was able to 'locate-them. MR. BENSON: No, we have,not, MR. FLETCHER: No, we have not. MR:.QUINNs We are still trying. MR. BOAL: Okay* and. MR. FLETCHER; It's our understanding if those r:. 17 ~:. 18, 19 0 24 are available, they.would probably be available in New York, Mr. Boal. MR.-BOAL:. Okay. I also asked if it was possible; 3 to break down the timing of expenditures for adver- tising in.:'71 and 172, particularly 172. The information that was given in answer to Interrogatory Number 7 gives the breakdown by year, and.I wondered if you developed any information. MR. FLETCHER:.: Again, we are that through New York. MR. BOALt Okay, MR,FLETCHER; Probably-have here for a lot : of re,W. data' going to Among other things, there are policy`: reasons. .That.would have.to be cleared in New York

51 t before we decided exactly how that's going to be pre- t .~:.and I guess my' request' is if, it ts possible to bree,., it down into each type of ad. I think there are two or three phases of 16 1 18 19 the early advertising. I was spent on the early advertising, as compared with ~ the later one, which is essentially "Marlboro Lights, I the spirit of Marlboro in a low tar cigarette," which , has been marked as Adams Exhibit Number 8. JOHN HOWARD BENSON, called as a witness.herein, having been previously duly sworn, was examined and testified further as follows: EXAMINATION (Continued By Mr. Boal: Q Mr. Benson, I have here a copy of a page of a printed,publication, Page 217.'-.. Itm not exactly sure what the publication but, I:ask. you. if you are!familiar with this docu- ment? (Witness exam-infng':document. . 4

1 n THE 'rIIT1:LSS: No, 3tm not. I'm not familiar z:_~" it. By-Mr'. Boal: Q.. Okay. . The_-.publication,* apparently, was written by an employee -- or the information was apparently,written by an employee of Leo. Burnett, and relates to •.the early Marlboro advertising. When Yes, I'm particularly interested in the paragraph . . . ~ near the bottom which states: "There was a deliberate effort to make the copy and picture work together. by keeping the copy as mas.culine-and straightforward as the picture. "The language was pure.vernacular. There were no wasted words,,no talking over the reader's head.. Every word spoke directly.to the.prospect and told Is that-statement accurate as to the advertising in*the t50's? Ln ,. ," r

3 .^.._ - . 5 6 8 statecient w'ould have to be accurate for almost any ads that you would ma':e, to make the picture and tY;c copy wcr:: to-;Qther, Q I'm asking' about Mzr.lboro. Is that true about. all Marlboro? A Yes. t Q Is that true about all Marlboro Lights• ~ ~ advertising? I'will have to answer yes. And is that true of Exhibit 4A for example?. , And the question being, again? t E hibit 1+A R f i i th err o e ng e language x , s "pure vernacular; there are no wasted"words, no talking over the reader's head" -- is every word spoken directly tohim in telling him what he want s i know about the cigarette? A I don't think this copy is pure vernacular, Q- There i-s no doubt about what is intended t It'ss a..point of sale piece, it looks like,: I don't think you answered my question. i L" 0 N oh ss 0 ~ --~- o o+ VV_--,..,, Ijust think it's a very straightforward presentation of the product, :

(The -record was .read. ) THE 'rlly'i:jSS r- I'm afraid I don't understarid t: : qu_e stion. By Mr. Boal: MR. FLETCHER: Did you identify that for.the record, Mr. Boal? MR. BOAL: Yes, I will. MR. FLETCHER: No, I mean what you just showed Mr, Benson. MR. QUINN:' Yes, 'he did, Cculd_,you read the question back again? Are you familiar with a publication called. What-is your recollection about it? It's a book put out -_ publishes it,, but it I don't recallo who s:a collection of what is sidered the hundred best,,ads, n't know con- . o v I

5 I seen it ,\ I'm not sure. Q Well, the' material I was reading to you Hundred Greatest Advertisenents." And the number . . , 1959 is noted in handwriting on the page, and we will ~ at some later date get some further identification of ' the publication, perhaps. I won't do it now, because I have here another co.py of what appears to be a publication or.a release, and*ask you if you recognize that? (Witness examining document.) THE WITNESS: Offhand, I don't recognize it, don't recognize it. By. Mr, Boal: (Witness examining document.) THE WITNESS: I believe this is an introductory .-sales brochure used by the sales for_ce at Philip

r- G It's possible we laid out the cover. I'M not cer-%~;a;.n, Q The.insert which is entitled -- well, it .-isn't.er.titled,,but it bears an identifying legend, I believe, "Circular Number 411A," .Did you have anything to do with the .ration of `that •document? A No, sir.. prepa- Q: And when I say "you," Leo.Burnett had '• nothing to'do with it? ' A Correct, No, sir, Q But referring to the cover, which is a glossy in color on one side and black and white on ! the interior - - A: It's entirely possible that we prepared the original layout for this. Q Who would_know that, Norman Muse? I don't think he would-know it, Ken:Krom might, I would ask the reporter,to mark the cover -as - Exhibit 13A, and insert as Exhibit 13B.. _ -. . - .. v~ (The.documents above 'referred to were marked Defendants' Benson Depo- sition Exhibit Nos,.13A and .13B; respectively, for identification.):

57. By Mr. Boal: Q REferrir.z to Exhibit 13A,, at the bottom of the: interior na.~e uron which there is. scme copy,- ther~ the reference to "newsp2,pers, ' full page 2/c ads r ~ and.1,500 line 2/c' ads in the top two hundred metro market newspapers plus full sampling in displays," Can ; ysou 'explain what that,means? A The "2/c" means color. The "1,500" indi- cates size-of the advertisement, and the'"two hundred" indicates the number of markets, and it indicates that there is a sampling plus point of sale piece. _ Q Now, what does "top two hundred metro ,markets" mean?'- i Well, that could vaxy,. Rule of thumb would< the top two hundred largest markets, with some 1 ~

J 1 ; I dori't k:now positively. In any event, that was the plan? _T-'rtat woa1:: have been the. plan, yes. Do.you Ynow k hen this piece was distribut- and*to whom? , October 21, 1971.- I'would assume it would have. been close to that date. Well, at that time, was there advertising in: the top two hundred markets? no, I don't. It contains a date A fExactly A I'm unsure. _ Q Well, wasn't it January before there was a . - national marketing? - Something like that. As-I recall., -Marlboro Lights began in the i ; northeast, and began.a national rollout.- When the :, . exact dates were", I'm not positive. I would like to say that it.'s entirely possible that Philip:Morris'prepared extra covers to accommodate their national rollout. for the New- England introduction;.and the- same thing.. In other words, this may have been prepared

s U 16 the client, Philip Morris, would be best~ able to. answetr your question. Perhaps with a different insert? Corre'ct, 5G _. ,. And z~r.o wculd. have the best knowledge with o- the . questions I have been . asking? Well, as far as this sheet is concerned, I'm not positive that our people can give you accurate answers on the preparation of this material (indicating). If they are unable to, I would assume the client would be best suited to accurately answer that. Q With respect to this particular piece what is the role.of the agency? Do you prepare the mechanical? Well,.we frequently prepare the color lay- Which just gives a color idea of how this- •.We frequently prepare the-mechanical; b not always. In al.most..every case,, it T s printed. or. the client. So there are changes that• o the layout.

, o'G ~ . Q,And was that probably.the ;•iarlboro Lights? ' case with It could very well have been, yes. Q Okay. , I have.. here~ aiiother document, and ask .if you can identify that document? THE WITNESS: It appears to be a counter displ2;r-' .unit for Marlboro Lights and Marlboro Red, I would assume it was. Did you ever see it in use? No, si.r,. .MR. BOALt I would ask the reporter to mark..the counter display piece as Exhibit 14A for identifica'- (The document above referred to was marked Defendants' Benson Deposition - Exhibit No. 14A for. identification. ) Q-_ Can you explain how a counter display such. as 14A is used?.. : Itts used by the sales force sometimes.for : paid space that they have made a contract for, where:c they are entitled to-display.their cigarette products; . ..- _. ~

61 ...._,...~ ...,... .w. . ._.._._.. , .~ i on the-counters of some retail outlets. I: e.r,c ~"her case, I guess it's just a matter i of,: sales:.^,ar,shi.p in cb ~aining a display on the coun':::. .; Q ~,Ihat.:~ was the role of Leo Burnett in regar;; A It's entirely possible we made the layout on'this. I'm•not sure. i ~ Ken Krom would be the most likely to.answer your question, if he can recall having done it, Q Who would be the most familiar with this? Q I notice that in the piece there are what appear to be two columns, one in which a representa- tion of the front panel of Marlboro Red appears and two.in which the representation of the front panel Can you explain the thinking behind that No, I c an't explain the thinking.behind it, Is there a signif icance to that arrangement*

No `particular reason for the selection? Anybody here- that knovrs that? --No, I doubt -'that. That would be at Phili^ Q >This is a determination made y Philip Yes. Q S have here another piece that is similar -- ~ i Q And did.Leo Burnett have any role -- Again, it's entirely. possible I mark this' ~ (The document above referred to was marked, Defendants' Benson Depositic'=` Exhibit No.-14B for identification. %J' to me, at any rate -- similar in character of design cular piece - I.-think this is called a small shelf talker,, A 1 - I'm not.certain. But it looks like.it-might be a small shelf.talker. THE WITNESS: I'm not certain thatts the name o°i

samplina gro~ran, e.nd t+hich- I believe the testimony ti;as that .there was a sampling program for Marlboro Lights in which Marlboro Red was given away together with Marlboro Light s, and - I not ic e that you brought .:vrith you today some Marlboro Red samplers. Q That~s-the sampler that was used for sure what the design on -the back was at that time. Were the ones that were given away similar I'm not sure what the sampling program is, but that's the sampler that's used, giveaways this past. 'summer, for example? That 's correct. I think they were Ats,- THE WITNESS: For four cents, ` I think we can handle that, yes-. (The item above referred'to was ~ , marked Defendants' Benson Dep.ositions Exhibit No. 15 for identification.).;

64 Q Does the M3rlboro Red ciEarette itself rc :i- A On the cigarette? Yes. , How about Marlboro Lights? I should know the answer to t hat question, MR.' FLETCHER: Hold it. Hold it. I might be =Excuse me,.does that answer your question.

., 65 ~ pfR,•FLJTCHER:. Oh, yes, that's right. That's riLht, :;.t does. B Q I-t;:in:; that's probably s~ill true. which it appears that the word is only "Marlboro," MR. BOAL: On the Marlboro Lights package. MR, QUINN: On the cigarette. (Off the record.) By Mr. Boal: Q* In connection with the Marlboro Red cigar- ette, on which the word "Marlboro" appears, do you- know whether or, not the word "Marlboro" has been used on the cigarette over the years since you were there an advertising reason for putting- e the name on the cigarette?-..' Not that Y tm aware of,' 3 s there any reason for putting it on the_ C% ~

66 -'._ci;;arette? Q To icentify the proauct. Or the source of the product? -Or.:the nam e of. the product,' If it f s' dis- 5 ~ pensed in a cigarette tray or something. Q These cigarettes are dispensed in a packaoe , .ti a N,arlbo'ro -package, is that right? A Correct. At a party, or where you have loose cigarettes in a container. Q I see, MR. FLETCHER: Off the record, (Discussion off the record.) By Mr. Boal: Q How would you describe the tip of thb Marlboro Red? Q White tip. _- .And the.tip of the Marlboro Lights?. Cork tip. Marlboro'Lights,' if,there is any reason? To distinguish it from Red, primarily. •'3 :. '. Q.. 'What t.s the tip on the Marlboro Menthol? I can't remember,--

67 Q In advertising terms, does a cork tip have a strcr.gnr cor.r.ctation of fr avor than a white tip? lighter taste-? . A Well, lighter taste -- that's hard to answer, you know, what's lighter taste. There is no tipping on those cigarettes? And the white tip has a connotation- of 'a If I'm not mistaken, L & M has a white tip, and it's -- you know, it's not considered a li ghter tasting cigarette. Q Q Q. , That's a stronger flavored cigarette or full flavored? I think it's considered a full flavored. . cigarette. Q In the case of-Marlboro Lights, the white tip is consistent.with lighter taste, is that correcil'.' A aell, again, I think it's to, differentiate- it between.Marlboro Red and Marlboro Lights,- A T`would say that's true, withe the exceptio!:,- course, of goj ng back to the old Camel, Lucky

66 @ white t:.b @ @ sir. Do you know how long it took to.develop t:e ~ No; sir, I. "d o not , on the Marlboro Lights? This is Philip Morris' business, is it'not? i . ~ Yes,. sir. Not the agency. Correct. Do you recall whether there were any choices as to tipping that were presented to the agency at the time Marlboro Lights was being prepared?` A I don't recall whether there-was on the tipping or_not, @ I an option 'i the agency sometimes involved in that? Rarely. Rarely? I have here a document that bears.the date Rarely. of August 1S, 1972, and it appears or to Mr,.Cremin, and'Mr, Fitzmaurice; and attached it is an office memorandum of the Leo Burnett.:.` Company, Inc, dated August 16, 1972,` .and I ask if 'you . - . - . . . o . N

1 3 G s 70 the-cigarettes themselves between the several meraber;, of the fa;nily o: 2•;arlboro :rL'? , FLETCHER: cigarettes?. Unu are talking :about the mar,::r. ; - and" the "tipp3nC.s and so .forth that are observable ~o the eye? -man MR. BOAL: Well, observable to an advertising MR. FLETCHER: Okay, Ijust want it understood we.,:weren't talking about the ingredients. MR. BOAL: No. THE WITNESS: One of them is'one hundred milli- meter, By Mr. Boal: @. Now, which one is that? (Indicating), This- is the Marlboro 100"s? .-Yes, MR.'BOAL: Well,-some scotch.tape.. '_ N : ;

;.: 11 71 "K *A By. ~:r, Boal: Q cigarettes to a sheet of yellow paper, and I would _4 C ask you to point_,out, the one that is the Marlboro Fec ,. and then I will ask the"reporter to mark underneath' ,xthe Marlboro Red cigarette the identifying number 1711.-- . ` : MR,'FLETCHER: Why don't we Just have him write - himself? M6-, BOAL: * All right, : THE WITNESS: Well, I can't identify.Marlboro Red from Marlboro Green without smelling it. By Mr. Boal:. :Q Isn't there a difference in the color i A11 right, Now, we have attached four which the "Marlboro" appears in the Marlboro Green? Yes, (Witness marking document. By Mr. Boalz @ A11 right, And you'have now written under -each of the cigarettes the particular line extension the cigarette is,.is that correct? Yes, the brand name.for each of them. MR: BOAL: And I will ask the-reporter to mark that sheet as Exhibit 17.:

., 3 U 16 17 19 21 '?3 24 identified? ~ tell, By _rlr; Boal: No•+t, would-you explain the differences i marking on each of the four cigarettes that you have or Marlboro Green,- Marlboro Red? 'Marlboro 100's has two gold stripes and is a longer cigarette. (The document above referred to was marked Defendants' Benson Deposit j--::. Rxhibit ::o. 17 for identificat;.on, ~ Marlboro Green -- Okay, of the_same.type face or family. Q Does it also bear the legend in black or gray of "Marlboro"? Q Just the single word "Marlboro"? Correct, And is.the type of printing of "Marlboro"' the same-as on the Marlboro Red package? The type style is the same as on the . Now, going to the Marlboro Menthol there any difference from the ~. It appears to be in black or gray. I can't~ Marlboro Red, the standard Marlboro Red.product - The type ofg printing on all -four cigarettes ~. ~ . . . ~- . .. . ~ ~ ~ ~ _ .~ - .. . - . -. i tv-

1 •1 73 sl-.ade of green. Q correct? A @ And how does Marlboro'Lights differ? Marlboro Lights has the word "Marlboro" in reason for it appearing above on the Marlboro Lights and below the typing on the other.Mariborols? And there are no gold bands, is that No 'gold bands: Which is also true of Marlboro Red? :Correct, And in the case of Marlboro Lights cigareti;:>,` 'Marlboro" as it appears on the cigarette is;

a Is therg•an advertising reason why "mariboro" appears : n bold on the Marlboro Lights, in either gra;; or ,;r_epn on the. other ones? A Not t_hat I'n a:•tare of. Q Did Leo Burnett participate in the choice Going back to Exhibit 16B, do you know who author"of that particular memorandum? Itts from Todd Abrams. Is he connected with Leo Burnett?. At the present time, I don't know. I do Do you know what department he was located ' . I Would think he's from the research depart- Research department at Leo Burnett? Research department at Leo Burnett, you know whether*...or not t.he material

. i I 75 9 Todd abra;;s, for one, Q Referrin ; to MorLan Exhibit 2, Pages 28 a:-.:1 - which, I believe,..were the first Marlboro Menthol ads -- or at least I-knoti•r that the horse ar..: cowboy appears in the advertising, a pictorial repre- sentation of the horpe and cowboy -- 18 ` rect, A Cor Q Do you recall the reason for including the horse and• cowboy in that ad? I don't recall the reason, I'm not certain these are -- are these the f irst ads? @ I do not know,. I don't believe -- Q It says "New Marlboro Menthol," so I assume eithere the first or early on. I don't believe these are the f irst, Maybe these are the early•Marlboro Menthol. Your question was, again?.. (The record was read, ) THE WITNESS: 0ne of the reasons certainly is because the Marlboro Red package is present in both ~ . . . - . . . . . 1 _ . . _ advertisements, and the horse and.cowboy have.broughtt i

A..- I don't think a horse and cowboy is going f lavor that the. 2•iarlboro Red~ had? .for the cowboy and the horse is the fact that major illustration, and certainly a cowboy and a t to reassure them of that. I think it Is more :'as a graphic device to show Marlboro adverti sing. 76 ~By t:r. Boal': Q Is the reason, perhaps, to`reassure peop?: the 11iarlbor'o 2•:enthol has the same great ;darlborc. I Q-Now, with respect to Sheets 32 and 33 of are the first ads -- or one of the early ads least -- for Marlboro 100's, Well, would you'agree with.the:statement:; Correct, at Now, what is the reason for the use of the. q "The use of the cowboy and the horse

. 0 77 tiat"the same,great things they have.come to expect-frcm Marlboro Red and Menthol is .now available in the 100 millimeter size"? . NiR', FLLTCHERt Could we identify the source of MR,.BOAL: Yes. That's Mr. Morgan's statement October 1S, 1974, Page 73 of his deposition. Yes, -- to reassure people that the same great things they have come to expect from Marlboro Red and Menthol is now available in the 100 millimeter size? I don't totally agree with that answer, because I look upon it more as a graphic device for the introduction of Marlboro 100's,. But = As.far as reassuring; I'm not so sure that it reassures people. Wasn't it intended that-people THE WITNESS: Would you mind restating that, Q. Would you agree that the use of the cowboy I

78 i.._.,.. , , 1 @ -Correct, 'Maribcro Red symbol? Ye s, I e.gree -with that, Q And is tne same `.the 2iarlboro- Menthol reasoning applied to the f of the cowboy in association with the advertising -- 'as,. for example, shown to the Morgan deposition? U 0 There is nothing unique about the cowboy and- the .horse as far as Marlboro is concerned? In my opinion, no. And I Marlboro Li ght s . 1 in Exhibit-3A .; . ~ I look upon 9f the-cowboy here more as just a little graphic device for the brand MarlboroyLights, i Does'anybody else in the cigarette industry :.. use this little graphic device, a picture of a cowboy~, the symbol of_ Marlboro. • i And-that symbol has been heavily.emphasizcd N; ~ -

6 s 0 ~ . Heavily acvertised Hc avily-` einphasi z ed'. Not 'from '54-to ' 63, but, more ' or less frc::: T And it's still being emphasized today, is Yes,, sir. It's still being used, yes. In a prominent way? c3' 10 -1 A Yes, sir, R a i 16 79 :3n adiertisin3 from 1951t to da,te, has it not? MR. BOAL: Okay. I don'.t have any further questions. f

0 6 18 , 19 20 21 23 24 ) :-;STATE OF ILLINOIS . . ) COUNTY OF C 0.0 K ) SS: I. Diane E, Norris; a notary public in anG. . _ ~ for the..County of Cook and State of Illinois, do ~ - ~ hereby certify that JOHN HOWARD BENSON-was by me firzt duly sworn to testify the whole truth and that the I ~ ~ above deposition, signed by him, was recorded steno- graphically by me and was reduced to typewriting under• ~. my=control and supervision. I further certify that the said deposition was examined and read over by the said deponent and .was signed by him in the presence of a notary public and that the said deposition constitutes a true record'of the testimony given by said witness_. I further certify that the said deposition was taken at the time and.place specif ied herein,. and that the taking of said deposition commenced on the 12th day of November, A,D,, 1974, and concluded_ on the 18th day of November, A, D, , 1974 I further certify that Mr. Anthony L. Fletcher, _ and- Mr. Timothy C, Quinn, Jr,, of.. the firm ~ of.Conboy, Hewitt, OtBrien & Boardman, 20 Exchange I ~ P1aza., New York,New York 1000 5,o appeared on behalf s. ~. I .~, . .::. .~. . . . : : 01 ....:.~.. 0 r_

7 ti 3 Vlillson, of the R. J. Reynolds Industries, Inc., 61 of the Plaintiff; _Mr. -R. Bradlee Boal, of the firm of Cooper, Dunhzm, Clark, Griffin & Lioran, 30 Rockefe? lr Plzza, New York, New York, 10020, and Mr. L. Alfred Winston-Salem,.North Carolina, 27102, appeared on I further certify that I am not a relative or employee or attorney or counsel of any of the parties,"or a relative or employee of such attorney or counsel, or financially interested directly or indirectly in this action. In witness whereof, I have hereunto set my hand and affixed my seal of office at Chicago, Notary Public, Cook`County; Illinois; C:nmmi eci nn ex 1[]75. ber 21 ires Dece M

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