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Smoke and mirrors: Big Tobacco’s last gasp legal challenge to plain packaging

The WTO allows countries to take measures “necessary for public health.” AAP

The Government’s plan to introduce plain packaging for tobacco products has been raised at the Council for TRIPS meeting in Geneva this week.

In a note to TRIPS delegates, the Indonesian Government has complained about the impact of plain packaging on WTO agreement while US business groups have written to the government, raising questions about its effect on the global intellectual property regime.

This earlier-published article addresses both these concerns.

The tobacco industry has launched another plank in its campaign against the government’s plan to introduce plain packaging for tobacco products, unveiling a series of radio, print and billboard advertisements.

It has also said it will release a series of confidential government documents obtained under Freedom of Information laws, which it claims will show that the government has no evidence that plain packaging will reduce smoking rates.

Under the new measure, tobacco products will be packaged in in a uniform pack with the same colour and large health warnings.

The only difference between the packs will be the name of the brand of cigarettes in plain font: there will no longer be any logos or fancy print on the packaging or the cigarettes themselves.

The tobacco industry is claiming that these measures are beyond the power of the Commonwealth government for several reasons, spanning both national and international law jurisdictions.

Constitutional law challenge

Their first claim is that the measures contravene the Constitution because they involve the acquisition of property on other than just terms.

Renowned constitutional law experts such as Professor Greg Craven and Professor George Williams have dismissed these suggestions because the legislation does not involve any acquisition of property by the government.

The government does not want to acquire the trade marks of the tobacco companies.

Contravention of international law?

The tobacco industry’s other arguments rest primarily on the trade-related aspect of intellectual property rights (TRIPS) agreement.

The TRIPS agreement is one of many agreements entered into by Australia in its capacity as a member of the World Trade Organisation (WTO).

The tobacco industry argues that the plain packaging measures contravene the provisions of TRIPS. The problem for them is that they have a hard time identifying which provision of TRIPs is contravened.

Another argument is that they have a right to use their trade marks under TRIPS. They are wrong and the WTO has said so in a decision concerning a dispute between Australia and the United States on the one hand and the European Union on the other.

The right given to a trademark owner under TRIPS is to prevent other people from using that trade mark. The plain packaging legislation does not permit other people to use the trade marks of the tobacco industry, so it does not contravene that right.

The other relevant provision of TRIPS is Article 20, which provides that “the use of a trade mark in the course of trade shall not be unjustifiably encumbered by special requirements”.

The legislation does restrict or impede some trade marks of the tobacco industry. The only question remaining is whether their use is “unjustifiably encumbered”.

Article 8 of TRIPS is vital for answering that question. It provides that countries may take measures “necessary for public health” provided they are consistent with the rest of the agreement.

So, if the measures are necessary for public health, they will be justifiable within the meaning of Article 20. That raises the next question of whether plain packaging measures are necessary for public health within the meaning of Article 8?

Testing the ground

Decisions of the WTO on a very similar provision - “necessary for human health” - suggest very clearly that the Australian government is on very firm ground.

One of the decisions related to measures by Brazil to restrict sales of retreaded tyres.

Retreaded tyres do not last as long as new tyres. Consequently, there will be more waste tyres if retreaded tyres are permitted to be sold instead of new tyres.

When these short-life retreaded tyres are disposed of, they collect rain water. Mosquitoes breed in rain water that accumulates in waste tyres and mosquitoes spread a lot of disease in Brazil.

The WTO said Brazil could impose restrictions on retreated tyres as it was necessary for human health to do so, provided the measures were not discriminatory in trade.

Unfortunately for Brazil, its measures were only aimed at imported tyres from Europe and so the measure was not consistent with the WTO agreement.

But if the measure had been aimed at all retreaded tyres, it would have been allowed by the WTO.

The plain packaging legislation is aimed at all cigarettes: it does not discriminate between cigarettes that are imported or made in Australia.

As for the evidence, 17% of Australians smoke. The evidence that half of them will die from doing so is no longer contested, even by the tobacco companies.

That comes to about 15,000 Australians every year who die from smoking-related diseases. Compare that to, say, the national road toll and you get a sense of the size of the public health problem.

Despite what the tobacco industry says, there is a great deal of evidence that its logos and branding are designed to attract both existing smokers and non-smokers, including those euphemistically referred to as “young adults”.

There is also a great deal of evidence going back to at least 1995 that plain packaging robs cigarette packets of their glamour and appeal.

More importantly, the tobacco companies’ own publications concede that if these measures are necessary for public health, then there is no problem with TRIPS.

In November last year, Professor Daniel Gervais wrote a report at the behest of a Japanese tobacco company. Tellingly, Professor Gervais concedes in his report that he has not examined in any detail the evidence of the necessity of these measures.

He also concedes that if the measures are necessary for public health, then they will be permissible.

So, if Australia wants to do to smoking what Brazil wanted to do to mosquito borne diseases, it is standing on solid ground to do so both locally and internationally.

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