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Protecting the brand: British American Tobacco instructs Herbert Smith Freehills for plain packaging challenge

British American Tobacco (BAT) has gifted Herbert Smith Freehills (HSF) with a major disputes mandate, and instructed the firm as the tobacco giant challenges the UK government’s plans to bring in plain cigarette packaging.

The London-headquartered BAT has further instructed Hogan Lovells to advise on intellectual property issues, while barristers brought in includes 39 Essex Chambers’ Nigel Pleming QC and One Essex Court’s Geoffrey Hobbs QC.

BAT constitutes a longstanding client of HSF, with City partner Philip Pfeffer advising on numerous judicial challenges to tobacco control regulatory measures including plain packaging, graphic health warnings, and ingredient bans. New York partner Benjamin Rubinstein also successfully represented the tobacco major in a decade-long civil racketeering lawsuit, filed by the US justice department against multiple US tobacco companies, seeking $280bn in disgorgement of past profits.

BAT is one of several tobacco giants vowing to fight the UK government in court, after Parliament approved the Standardised Packaging of Tobacco Products Regulations 2015 which includes a ban on cigarette packet branding. Set to come into force in May next year, tobacco manufacturers will be forced to sell cigarettes in plain packets with uniform size, shape and design featuring only brand name and health warnings.

Prior to a debate in the House of Lords, BAT confirmed it would ‘commence a legal challenge against the UK Government, if the House of Lords supports MPs who voted to implement plain packaging for tobacco products’.

BAT’s corporate and regulatory affairs director Jerome Abelman said: ‘This legislation is a case of the UK Government taking property from a UK business without paying for it. That is illegal under both UK and European law.’

‘Legal action is not something we want to undertake, nor is it something we enter into lightly – but the UK Government has left us with no other choice after running what can only be described as a flawed consultation process. Any business that has property taken away from it by the state would inevitably want to challenge and seek compensation.’

BAT intends to argue that plain packaging violates a number of UK, European Union (EU) and international laws, including EU trademark laws, as well as World Trade Organisation rules regarding international trade.

In December 2012 Australia became the first country to introduce plain packaging while last month Ireland’s president signed into law the Public Health (Standardised Packaging of Tobacco) Bill.

Other firms acting on behalf of Big Tobacco include Arthur Cox which is currently representing Japan Tobacco in its dispute over plain packaging legislation against the Irish government.

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