Australia and the tobacco plain packaging legislation

23 Mag

di Francesco Sindico

cigaretBack in 2010 John the backpacker, as many young adventurous people, decided to travel to Australia. When he arrived one of the first things he did (as many young people) was to go enter a tobacco shop and buy a package of cigarettes. Three years later in 2013 John returns to Australia on business and, even if he smokes less, he still enjoys a cigarette now and then, and goes to the same shop at the airport to buy himself his package of cigarettes. To his surprise the scene has changed dramatically. While in 2010 behind the seller he could identify the famous colours and shapes of most multinational tobacco brands, now the only thing he could see was white packages with horrendous pictures of people disfigured and other atrocious effects caused by smoking. Put off by such images John decides to move on and not buy his package of cigarettes and ends up smoking quite less during his business trip to Australia.

While the story of John the backpacker become businessman and his trip to Australia is fiction, what has happened behind the seller in any tobacco shop in Australia is not, and is the result of the implementation of the 2011 Plain Packaging Act. The effect plain packaging has had on our John is precisely what the government wants: less people smoking in order to protect public health. Comments during the parliamentary debate in Canberra make this point very clear: “If this legislation stops one young Australian from picking up a shiny, coloured packet and prevents them becoming addicted to cigarettes then in my view it will have been worthwhile”, said John Faulkner, a Labour senator.

As you can imagine, while the enactment and successive implementation of the 2011 Act has been hailed as a success by anti-smoking campaigners (civil society), other players were not so happy. The cigarette industry (business) worldwide has been looking at what would come out from Australia and it did not take them long to voice their (negative) reaction. Philip Morris Australia made it very clear by maintaining that they were ready to challenge plain packaging legislation “through international arbitration against Australia and to also consider domestic legal action under Australian law”. This is the case because the cigarette industry claims very strongly that they are producing and selling a lawful product and that the plain packaging measures infringes rules of intellectual property. This is how Scott McIntyre, spokesman for British American Tobacco Australia, put it: “We’re a legal company with legal products selling to adults who know the risks of smoking. We’re taking this to the high court because we believe the removal of our valuable intellectual property is unconstitutional”. This actually happened in 2012 when the Australian High Court clarified that the measure was constitutional, thereby assessing a strong blow for the business sector who was against the 2011 law.

cancer smogThere are other contributors to this blog more experienced than me on intellectual property law and I leave it to them, if they wish, to comment on the legality of the Australian legislation. What is interesting from my perspective is that once again a national measure deemed to protect public health (the plain packaging legislation) is under scrutiny for its legality also at an international legal level. Threats became reality when in 2012 Ukraine (sic!) filed an official complaint against Australia’s measure before the Dispute Settlement Body of the World Trade Organisation (WTO). Since negotiations did not lead to any solution, a panel has now been established and in 2013 a Report may be issued clarifying (or not) the legality of plain packaging legislation vis a vis international trade law. This will be a case to follow closely in order to see whether the WTO will be able to strike a balance between the need to uphold international trade rules (in this case mainly intellectual property law enshrined in the Trade Related Aspects of Intellectual Property Agreement) and the right for countries to decide their level of public health protection.

In the midst of all of this, the only truth is that John the backpacker smoked more than John the businessman during their trips to Australia. Whether this is down to the plain packaging is a matter of speculation, but it is a matter worth studying and looking at closely. 



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