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Aust Govt wins case against tobacco giant Philip Morris over plain packaging laws

PETER LLOYD: Australia has won a long legal battle against tobacco giant Philip Morris over its plain packaging laws.

The company brought the case against Australia when the laws were introduced by the Gillard government back in 2011.

It’s a win for Australia that could have international ramifications as other countries too consider introducing plain packaging for tobacco products.

Imogen Brennan is speaking here to Professor Tania Voon, a specialist in trade at the Melbourne Law School.

TANIA VOON: Philip Morris was essentially arguing that this violated its investment protections, that it was contrary to Australia’s investment obligations under the Australia-Hong Kong bilateral investment treaty.

Really Philip Morris was concerned not so much about Australia, which has a relatively small population in world terms and a relatively low smoking rate which has got lower as the case has continued, but it was more concerned I would say with the impact globally because it’s very concerned, the whole tobacco industry is very concerned, about other countries following this kind of measure.

IMOGEN BRENNAN: So this could potentially set a precedent in other parts of the world?

TANIA VOON: Ah yes. So in, not necessarily in a formal sense, but certainly this will have an impact on any other case that relates to tobacco control measures, it will affect other countries’ decision making about what tobacco control measures to adopt and I would say that a significant component of the intention of this case on the part of the claimant Philip Morris was to stop other countries from adopting these kinds of measures or to delay other countries from doing that.

And it has. To some extent it may have succeeded, with some countries deferring their decision making or putting off pursuing these measures. For example New Zealand had said we will wait to see what happens with this dispute.

Other countries have nevertheless gone ahead. Today I saw another announcement that France was going ahead and was going to introduce plain packaging from May next year. Other countries include Ireland and the United Kingdom that also are pursuing similar measures.

IMOGEN BRENNAN: So this case has been going for years now and today Australia won in the investor-state dispute settlement. Can Philip Morris appeal this decision?

TANIA VOON: No. This was a decision based on the jurisdiction of the tribunal. The tribunal determined that it did not have jurisdiction to hear the case.

IMOGEN BRENNAN: In terms of further legal action against Australia in regards to its plain packaging laws, there’s a separate claim against Australia at the World Trade Organisation at the moment. What’s that case about and who’s brought that?

TANIA VOON: So the case is about the same thing. Again, it’s about Australia’s plain packaging laws. There are arguments in that case about a violation of intellectual property obligations for example. Again I think that Australia is very likely to win that case.

The case has been brought – it can only be brought by WTO members. It cannot be brought directly by companies. It’s being brought by Cuba, the Dominican Republic, Honduras and Indonesia. Originally Ukraine was also one of complainants but it has since suspended its complaint.

IMOGEN BRENNAN: This must be costing the Australian Government a lot of money in terms of defence.

TANIA VOON: So I’d say it has been a long process that would have used up a lot of Australian resources but in a sense that’s something that I think the tobacco industry is trying to shout loud and clear and the implication is for other countries to watch out because they will bring the same claims against these other countries.

And I think in this regard it is a significant win not just for Australia but for all other countries around the world that are facing these kinds of arguments from the tobacco industry where the industry is trying to stop them bringing in not just plain packaging but really any kind of tobacco control measure.

So any country that wants to increase for example their graphic health warnings will face these kinds of arguments. So it is continuing the tobacco industry tradition of bringing whatever legal actions the industry can domestically and internationally.

PETER LLOYD: That’s Tania Voon from the Melbourne Law School speaking to Imogen Brennan.

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