15 April 2011
Tim Wilson’s piece on the plain packaging legislation basically repeats the claims that have previously been made by him. Last year, I gave a detailed response to Tim’s claims about the Constitution and international treaties. A webcast of that response can be seen here.
As for the Constitutional argument that the legislation acquires property on other than just terms, Professor Craven, a noted Constitutional expert, has since observed on Radio National’s Background Briefing that the tobacco industry’s prospects of success are about the same as a three legged horse has of winning the Melbourne Cup. The reason for his view is simply explained. The extinction of rights or the reduction of rights is not relevant. The government or a third party must acquire property as a consequence of the legislation. The government does not wish to use the tobacco trade marks. Nor does it want third parties to do so. It does not desire to or intend to acquire any property. The proposition that prohibitions on the use of property do not constitute an acquisition of property was confirmed by the High Court as recently as 2009. In that case, the High Court held that the government was entitled to extinguish property rights in licences of farmers to take bore water.
It is true that the government has now worded the legislation so that even if a three legged horse does win the Melbourne Cup, it can still impose very significant restrictions on tobacco packaging. If you had a lawyer, you would expect them to give you an excellent fallback position, even in the event of the worst of all possible outcomes. It would not mean that the lawyer considers your position to be even marginally weak. It most certainly does not mean ‘oops’, as Tim inaccurately states.
Just by the way, the tobacco industry’s argument is that what the government will acquire is more effective health warnings although that’s not an acquisition of property. The interesting point is that tobacco’s complaint is that the measures will work to reduce smoking. This honesty is welcome.
As for the international law claims, Tim continues to refer to one short e-mail from one staff member of IP Australia. He chooses not to refer to IP Australia’s official statement describing Tim’s interpretation of the e-mail as ‘misleading and incorrect’.
What he also does not tell us is that major global tobacco companies held a meeting in 1994 at a cost of about US$650,000 to discuss this very issue. Due to discovery of the documents in the course of tobacco litigation in the US, we know that a presentation to that meeting revealed the carefully considered legal advice that TRIPS provided ‘little joy’ to the tobacco industry. See the overhead slides here.
Since then, there have been further developments that have further eroded the tobacco industry’s already untenable claims. First, there has been considerable jurisprudence at the WTO concerning the capacity of member nations to take independent regulatory action in respect of public health measures. See the webcast referred to above. Second, the guidelines to the Framework Convention on Tobacco Control which has over 170 signatories have now recommended the adoption of plain packaging.
Tim refers to Article 20 and Article 8 of the TRIPS agreement but manages to obfuscate the issue. If these measures are necessary for public health, they will be justifiably imposed within the meaning of Article 20.
The issue boils down to whether there is evidence that the measures are necessary for public health. The tobacco industry has always challenged the suggestion that there is evidence of any facts justifying any regulation of its industry. In 1994, its executives swore on oath before Congress that they did not believe that nicotine is addictive. Tobacco companies have denied that there is any evidence that smoking causes cancer, any evidence that it causes heart disease, any evidence that passive smoking is harmful and any evidence that bans on advertising would lower smoking rates. Now, they question the evidence that the packaging that they spend so much money and time on developing attracts non-smokers and continues to attract existing smokers.
Here’s the problem for Tim and the organisations that he may or may not represent. The Internet and the academic literature are swarming with evidence directly from the internal documents of marketing departments of tobacco companies of their use of packaging to attract and retain smokers, especially ‘young adults’. In addition, there are numerous studies, dating back to at least 1995, showing that plain packaging will have a negative effect on uptake of smoking. The WTO and the scientific world will assess the evidence from a neutral, disinterested perspective.
As for declarations of qualifications and interests: I am a Professor in the Faculty of Law at Monash University, specialising in intellectual property. Further details are available on my website. I am a member of the Expert Advisory Group referred to in the Consultation Paper. I have spoken to employees of the Cancer Council Victoria about this issue. No financial benefit has been offered, promised or provided to me. I have been given some nice sandwiches at meetings and I have now accepted assurances that the orange juice was fresh.
Professor Mark Davison teaches law at Monash University and is the author of several major works relating to intellectual property and competition law.