http://www.worldtrademarkreview.com/blog/detail.aspx?g=919e2f30-9a11-4e07-82cd-da32ddd18752
The long-awaited decision of a World Trade Organisation panel on Australia’s decision to enforce standardised packaging on tobacco products has been ‘imminent’ for years. While the wait goes on, governments across multiple continents – including Africa, Asia and Europe – are introducing plain packaging legislation at an increasingly swift rate. While this suggests that the tobacco industry’s fight to hold back the spread of plain packaging is on the ropes, the anti-plain packaging lobby has not given up yet.
A major development in the last few months, which may have spurred on recent legislation announcements, was the World Bank dispute settlement body’s dismissal of a case brought by Philip Morris International against Uruguay’s implementation of enlarged label warnings on tobacco products. While this follows lawsuit losses against similar regulations in the UK, Norway and Australia, the Uruguay case has long been viewed as a test case, as it was the first time a tobacco group had taken on a country in an international court on this issue. The dismissal was therefore dubbed by commentators as “more than just a local triumph”, with one law lecturer suggesting it “may make it more difficult for tobacco companies to use lawsuits to produce a ‘chilling effect’ and so discourage countries from introducing tobacco control policies”.
In the months since that decision, a slew of national governments have announced or signed through plain packaging legislation. The push is now truly global. For instance, Gambia looks set to be the first African country to implement plain packaging, as the country seeks to maintain its award-winning anti-tobacco credentials. In Asia, both Malaysia and Thailand are well on their way to introducing a brand-free environment for tobacco, with pushes to introduce it in India and China too. Finally, following the European Court of Justice’s ruling in May that the new EU directive on tobacco products is valid, plain packaging laws came into effect in Hungary last month (with legislation that goes further than the current EU directive).
These recent developments follow similar moves in the last 12 months in Canada, New Zealand, Norway, and France. That’s not forgetting the UK following Australia’s lead by implementing its own standardised packaging laws in May (the same legislation in Ireland was delayed at the last minute). All told, the Canadian Cancer Society lists 14 countries where plain packaging is either now implemented or being formally considered (not including the aforementioned China, Gambia, India, Malaysia and Thailand).
But despite the tide appearing to turn, tobacco conglomerates are refusing to give up just yet. For example, Japan Tobacco International (JTI) recently commissioned research into the views that people hold of uniform packaging in Canada (following the Canadian government’s three-month consultation period about its possible implementation, which began in May). Some of the results were published in an op-ed in the Toronto Sun last week. They suggest low awareness of the consultation, with the results showing that “one in five Canadians had heard of the government’s intention to introduce plain packaging” and “only one in 10 understood what it was about”.
Of course, it is probable that a high proportion of citizens will be unaware of most government consultations – so those results are hardly a surprise. Additionally, plain packaging proponents will argue that this doesn’t have a bearing on the pros and cons of the regime itself. What it does show is, despite the repeated lawsuit losses, tobacco companies are refusing to give up the fight (and, as this very publication’s trip to the Dominican Republic in May demonstrates, cigar companies remain confident that the fight remains winnable).
Of course, this isn’t just a tobacco sector issue and trademark associations have long argued that plain packaging severely impairs the function of trademarks, makes counterfeiting easier and is in violation of international treaties. They have also warned that governments may decide to require plain packaging for other products or industries whose impact on public health is being scrutinised. On the latter, a ‘world first’ study released last week promotes the benefits of plain packaging on sugary products – suggesting that the predicted ‘domino effect’ could soon become reality.
Associations are therefore intent to keep fighting the spread of plain packaging. In June, for instance, INTA wrote to the Swedish government to register its opposition over the country’s decision to consider plain packaging for tobacco products.
The fight, then, goes on. However, as more countries line up to implement plain packaging regimes, it is getting harder to see how a comeback is possible – that is, unless the WTO panel delivers an upper-cut to Australia’s plain packaging regime early next year.