March 16th, 2015:
Plain packaging does not violate Big Tobacco’s intellectual property rights
http://theconversation.com/plain-packaging-does-not-violate-big-tobaccos-intellectual-property-rights-38802
The argument that plain packaging encroaches on trademark rights is unconvincing – here’s why.
The House of Commons has voted in favour of compulsory, standardised and logo-free packaging for cigarettes. If also approved by the House of Lords, the new law will enter into force in England in 2016. This will mean trademarks, graphics and logos will be removed from packs, except for the brand name, which will be displayed in a standard font identical for all brands in the market. Large graphic health-warning images will also dominate on the front. A dark colour such as olive green will permeate the pack.
The aim of the measure – already in force in Australia since December 2012 and approved by Ireland – is to make cigarette boxes unappealing, especially for adolescents, so reducing the prevalence and uptake of smoking in the overriding interest that is public health.
Obviously Big Tobacco strongly opposes this measure. Seen from their perspective, such a legislative move is capable of confusing consumers and is an unacceptable de facto expropriation of their (intellectual) properties, namely their powerful brands, for which they have invested, and are still investing, so much money. In particular, they have claimed that this measure infringes their trademark rights, as it would end up in banning the use of all logos and graphic, fancy and design elements, which are protected by trademark registrations, for which tobacco companies have paid and will keep on paying filing and renewal fees.
Alongside this, the industry has argued that standardised packaging will not be effective in reducing the uptake of smoking, and may even have a “boomerang” effect of increasing smoking uptake – without the possibility of adorning their packs, it is argued, tobacco companies would compete only on prices making tobacco cheaper and more affordable.
Trademark argument unconvincing
Big Tobacco’s arguments are not convincing, and when it comes to trademarks standardised packaging doesn’t encroach on these rights.
First, tobacco manufacturers will still be able to distinguish their products from those of competitors as the measure allows them to display on their packs the brand name, although in a standard font.
Second, trademark registrations do not offer their owners a positive right to actually use the protected sign, but just the negative right to prevent counterfeiters from copying it. Indeed, enterprises and businessmen are able to use brands regardless of trademark registrations: the simple fact of starting a business allows them to use signs and logos in the course of trade. And the fact that trademark registrations do not offer their owners a positive right to use the trademark allows governments to introduce measures, such as standardised packaging, that prohibit or restrict such use on public interest grounds.
That trademark registrations do not offer a right to use the sign also lends weight to the conclusion that plain packaging does not constitute a de facto expropriation of tobacco brands and does not expose the countries which adopt this measure (such as England, Australia and Ireland) to the risk of having to pay damages in compensation to tobacco producers under the European Convention on Human Rights and the EU Charter of Fundamental Rights (which protect, among other fundamental rights, the right to property). Basically, standardised packaging does not amount to any expropriation of any property.
As the Australian High Court eventually held in a domestic litigation concerning plain packaging, a government that introduces this measure is not “acquiring” tobacco brands – it just prohibits their promotional use on packaging on public health grounds.
A parallel could be drawn between cigarettes and cannabis. If countries want to legalise the consumption of cannabis (and there are several governments which have already done so, or are currently discussing this legislative option), they may also want to protect consumers’ health and thus prevent marijuana and hashish manufacturers and distributors from using colourful and eye-catching brands to promote their consumption.
Should we allow cannabis growers and distributors to stop these countries pursuing this legitimate public interest by permitting them to claim a positive right to use trademarks and protect their investments in cannabis-related brands? My answer is no.
The measure seems effective
Finally, contrary to what Big Tobacco claims, standardised packaging seems also effective. Australia, for example, has justified this measure by relying on convincing scientific evidence. Recent figures released by the Australian Bureau of Statistics indeed show that total consumption of tobacco and cigarettes in the first quarter of 2014 in Australia is the lowest ever recorded. The number of young people taking up smoking also appears to have fallen.
In addition, the introduction of this measure has triggered a significant spike in Australian callers to Quitline, the telephone helpline offering treatment for addiction and behaviour change, while the allegations about unintended boomerang effects of standardised packaging seem rather speculative and unsubstantiated.
The conclusion that this measure is lawful and effective is further reinforced by a multilateral treaty adopted under the auspices of the World Health Organisation and introduced in 2005, under the Framework Convention on Tobacco Control (FCTC). This treaty aims to protect “present and future generations from the devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke”. In particular, the Guidelines to the FCTC recommend that states adopt plain packaging to increase the noticeability and effectiveness of health warnings and messages and so eliminate the effects of advertising and promotion on tobacco packs.
Whatever the tobacco companies may argue, it is the public’s health that should come first and foremost.
Plain packaging does not violate Big Tobacco’s intellectual property rights
http://theconversation.com/plain-packaging-does-not-violate-big-tobaccos-intellectual-property-rights-38802
The House of Commons has voted in favour of compulsory, standardised and logo-free packaging for cigarettes. If also approved by the House of Lords, the new law will enter into force in England in 2016. This will mean trademarks, graphics and logos will be removed from packs, except for the brand name, which will be displayed in a standard font identical for all brands in the market. Large graphic health-warning images will also dominate on the front. A dark colour such as olive green will permeate the pack.
The aim of the measure – already in force in Australia since December 2012 and approved by Ireland – is to make cigarette boxes unappealing, especially for adolescents, so reducing the prevalence and uptake of smoking in the overriding interest that is public health.
Obviously Big Tobacco strongly opposes this measure. Seen from their perspective, such a legislative move is capable of confusing consumers and is an unacceptable de facto expropriation of their (intellectual) properties, namely their powerful brands, for which they have invested, and are still investing, so much money. In particular, they have claimed that this measure infringes their trademark rights, as it would end up in banning the use of all logos and graphic, fancy and design elements, which are protected by trademark registrations, for which tobacco companies have paid and will keep on paying filing and renewal fees.
Alongside this, the industry has argued that standardised packaging will not be effective in reducing the uptake of smoking, and may even have a “boomerang” effect of increasing smoking uptake – without the possibility of adorning their packs, it is argued, tobacco companies would compete only on prices making tobacco cheaper and more affordable.
Trademark argument unconvincing
Big Tobacco’s arguments are not convincing, and when it comes to trademarks standardised packaging doesn’t encroach on these rights.
First, tobacco manufacturers will still be able to distinguish their products from those of competitors as the measure allows them to display on their packs the brand name, although in a standard font.
Second, trademark registrations do not offer their owners a positive right to actually use the protected sign, but just the negative right to prevent counterfeiters from copying it. Indeed, enterprises and businessmen are able to use brands regardless of trademark registrations: the simple fact of starting a business allows them to use signs and logos in the course of trade. And the fact that trademark registrations do not offer their owners a positive right to use the trademark allows governments to introduce measures, such as standardised packaging, that prohibit or restrict such use on public interest grounds.
That trademark registrations do not offer a right to use the sign also lends weight to the conclusion that plain packaging does not constitute a de facto expropriation of tobacco brands and does not expose the countries which adopt this measure (such as England, Australia and Ireland) to the risk of having to pay damages in compensation to tobacco producers under the European Convention on Human Rights and the EU Charter of Fundamental Rights (which protect, among other fundamental rights, the right to property). Basically, standardised packaging does not amount to any expropriation of any property.
As the Australian High Court eventually held in a domestic litigation concerning plain packaging, a government that introduces this measure is not “acquiring” tobacco brands – it just prohibits their promotional use on packaging on public health grounds.
A parallel could be drawn between cigarettes and cannabis. If countries want to legalise the consumption of cannabis (and there are several governments which have already done so, or are currently discussing this legislative option), they may also want to protect consumers’ health and thus prevent marijuana and hashish manufacturers and distributors from using colourful and eye-catching brands to promote their consumption.
Should we allow cannabis growers and distributors to stop these countries pursuing this legitimate public interest by permitting them to claim a positive right to use trademarks and protect their investments in cannabis-related brands? My answer is no.
The measure seems effective
Finally, contrary to what Big Tobacco claims, standardised packaging seems also effective. Australia, for example, has justified this measure by relying on convincing scientific evidence. Recent figures released by the Australian Bureau of Statistics indeed show that total consumption of tobacco and cigarettes in the first quarter of 2014 in Australia is the lowest ever recorded. The number of young people taking up smoking also appears to have fallen.
In addition, the introduction of this measure has triggered a significant spike in Australian callers to Quitline, the telephone helpline offering treatment for addiction and behaviour change, while the allegations about unintended boomerang effects of standardised packaging seem rather speculative and unsubstantiated.
The conclusion that this measure is lawful and effective is further reinforced by a multilateral treaty adopted under the auspices of the World Health Organisation and introduced in 2005, under the Framework Convention on Tobacco Control (FCTC). This treaty aims to protect “present and future generations from the devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke”. In particular, the Guidelines to the FCTC recommend that states adopt plain packaging to increase the noticeability and effectiveness of health warnings and messages and so eliminate the effects of advertising and promotion on tobacco packs.
Whatever the tobacco companies may argue, it is the public’s health that should come first and foremost
Unscrupulous methods used by tobacco industry revealed over illicit trade
http://theconversation.com/unscrupulous-methods-used-by-tobacco-industry-revealed-over-illicit-trade-38755
In the run up to a parliamentary vote that saw overwhelming support for introducing standardised (plain) packaging for cigarettes, tobacco companies and their supporters made frantic attempts to influence public and political opinion against the policy.
Since the very first calls for plain packaging, the tobacco industry has waged what is arguably its most virulent battle in recent years against the regulation of its business. It has employed a multi-faceted campaign to influence both public and political opinion, recognising that the former influences the latter.
Exerting influence
A key argument against is that plain packaging is a gift to counterfeiters and will lead to an exponential increase in illicit trade. Despite evidence of its endemic complicity in this trade in the past, as well as a fine in 2014 for British American Tobacco and an investigation of Japan Tobacco International that was still on-going in 2013, the industry has worked very hard to change the public perception of its role from perpetrator to victim and solution provider. It is using the latter in particular to get itself to policy making tables.
In the UK the industry has promoted two main messages: that the amount of cigarettes being smuggled is on the increase; and that plain packaging will make a deteriorating situation much worse, with added scaremongering about organised crime, local corner shop closures and “deadly” illicit tobacco.
In order to effectively promote these two main messages tobacco companies have relied on the classic public relations tactic – the third-party technique – using a seemingly independent messenger with a better reputation and greater credibility to convey arguments.
Since 2011, Will O’Reilly, a former detective chief inspector with the Metropolitan Police, has been paid by Philip Morris International to conduct research and act as an industry spokesman on the illicit tobacco trade. He has featured heavily in regional press across England stating that illicit tobacco trade is a big problem and will get much worse. O’Reilly has also lobbied on this issue in Scotland, Ireland ad New Zealand.
However, recent research by the Tobacco Control Research Group at the University of Bath has exposed how tobacco companies are exaggerating the extent of illicit tobacco in the UK by commissioning surveys whose methodology and validity are unclear, misquoting government data and facilitating misleading media coverage.
Despite the hype, in recent years official UK figures suggest an overall decline in the illicit trade, or at worse a small increase.
One tobacco company spent £2m on advertising space in national broadsheets. In September/October 2012, Japan Tobacco International (JTI) published an advert in print and digital versions of the Financial Times, The Times, The Telegraph, the Guardian and the Evening Standard which portrayed illicit trade as a large and growing problem in the UK.
Following complaints to the Advertising Standards Agency the agency ruled that JTI could not claim that “the black market in tobacco is booming”, nor that the UK suffered “£3 billion in unpaid duty last year” as this figure was the very top limit of an estimate of revenue loss by Her Majesty’s Revenue and Customs (HMRC). The true figure is likely to be much lower.
Misrepresenting Australia
The promotion of industry-funded research is part of their campaign to claim that illicit trade has risen in Australia since plain packaging was introduced there in December 2012. But this research has been dismissed as flawed by both the Australian authorities and the UK’s 2014 Chantler Review. Peer-reviewed research found that one year post-implementation of the policy, the availability of illicit tobacco in small retail outlets was unchanged as was the proportion of smokers reporting use of unbranded illicit tobacco.
A non-exhaustive list of tobacco companies and third-party organisations in the UK have nevertheless continued to promote the conclusions of these studies: the Tobacco Manufacturers’ Association, tobacco company front-groups Forest and the Tobacco Retailers Alliance, right-wing think tank the Institute of Economic Affairs, retail groups with fee-paying tobacco company members such as the Petrol Retailers Association, the National Federation of Retail Newsagents and the Scottish Grocers’ Federation and the Consumer Packaging Manufacturing Alliance. MPs such as Ian Paisley Jr and Nigel Farage have also cited the conclusions of industry-funded studies when speaking out in opposition.
Following the government announcement on January 21 2015 that it planned to legislate for plain packaging prior to the May general election, the National Federation of Retail Newsagents, which lists tobacco companies among its fee-paying members, sprung into action. The federation has been strongly encouraging its members to lobby their MPs, has marched on parliament in plain white masks and has distributed emotive postcards to the public that were pre-addressed to chancellor George Osborne, citing the illicit trade as a reason for opposing the policy.
A recent study funded by Cancer Research UK of 62 small retailers found that despite 81% believing that they were dependent on tobacco sales for footfall, 94% acknowledged that profit margins on tobacco products was low and 40% were interested in reducing their reliance on tobacco.
Profit margins. John Stillwell/PA
Lobbying for policy access
As they scaremonger over the problem, the industry has been trying to position itself as part of the solution.
Many local authorities have signed the Local Government Declaration on Tobacco Control which relates to Article 5.3 of the world’s first global public health treaty, the Framework Convention on Tobacco Control, which states:
In setting and implementing their public health policies with respect to tobacco control, parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law.
Yet in the last few months, documents provided to the Tobacco Control Research Group show that the Tobacco Manufacturers’ Association, which is wholly financed by British American Tobacco, Imperial Tobacco and Gallaher (owned by JTI) has been lobbying local authorities in both Scotland and England for access.
Determined to be included in local authority strategies on the illicit tobacco trade, the association commissioned a legal opinion which it sent to local authorities in February arguing that neither the declaration they had signed, nor Article 5.3 recommend that local authorities “sever links with the tobacco industry … or cease partnership working.”
Collaborating with Crimestoppers
Unfortunate bedfellows Crimestoppers, CC BY
Tobacco companies are also forging ahead with new partnerships with other organisations too. In January 2015, one trade magazine reported how JTI had “joined forces with the independent crime fighting charity Crimestoppers to work together to stamp out the illegal tobacco trade across the UK”.
That same month Crimestoppers drew criticism from some in the public health community for re-iterating tobacco industry arguments that since plain packaging had been introduced in Australia “illicit had increased” and that in the UK it might be “good for fakers”.
Sheila Duffy, the head of ASH Scotland, said she was deeply worried by these activities:
Organisations whose purpose is to protect community safety and well-being, or to represent the interests of small businesses, are drawn into partnerships with this lethal industry and lend it their profile and respectability. We have a saying in Scotland ‘It takes a lang spoon tae sup wi’ the deil’. I suspect anyone supping with the tobacco industry is likely to get burned sooner or later.
While acknowledging that illicit tobacco is an important issue that will require ongoing enforcement by HMRC, the Chantler Review concluded that there was “no convincing evidence to suggest that standardised packaging would increase the illicit market”.
HMRC’s own impact assessment of the likely impact of plain packaging on the illicit trade stated:
We have seen no evidence to suggest the introduction of standardised packaging will have a significant impact on the overall size of the illicit market or prompt a step-change in the activity of organised crime groups.
These conclusions, combined with the scale of tobacco industry tactics and the fact that independent evidence from Australia shows that, contrary to industry claims, there is no evidence of an increase in illicit trade since the introduction of plain packaging in 2012, illustrates that the illicit trade argument is, once again, being misused by the tobacco industry to influence policy decisions.