The Australian High Court has recently rejected a challenge, brought by various international tobacco companies, against a law requiring them to remove branding from their products and replace it with plain packaging.
On foot of this decision, all cigarettes sold in Australia will, from December 2012, be packaged in plain, olive brown packs and feature graphic health warnings. The graphic health warnings are required to cover 90 per cent of the back of the packaging and 70 per cent of the front. While brand and product names will remain on packages they will be limited to a standard colour, position and font style and size.
This decision is unlikely to mark the conclusion of attempts by international tobacco companies to overturn this law. The Dominican Republic, Honduras and the Ukraine have all lodged complaints with the World Trade Organisation against this legislation on the basis that it violates the Trade Related Aspects of Intellectual Property Rights (TRIPS), the rules of which are applicable to all WTO members, including Australia. In addition, Philip Morris Asia has instigated separate legal proceedings against the Australian Government on the grounds that this legislation breaches Australia’s bilateral investment treaty with Hong Kong.
On a related note, the EU Health Commissioner has indicated that the current review of the 2001 Tobacco Products Directive may lead to the introduction of more stringent rules on tobacco packaging within the EU. The draft revision is expected in late autumn 2012.
Closer to home, the UK government has just completed a four-month consultation on the issue of plain packaging for tobacco products. A final decision on whether such legislation will be introduced is due to be announced later this year. It seems inevitable that this current trend towards plain packaging for tobacco products will produce further legal challenges in the near future.
Contributed by Gerard James.
