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Tobacco industry’s legal challenge stumbles as death tops agenda

19 April, 2012

THE tobacco industry’s constitutional challenge to enforced plain packaging has hit a central problem: smoking kills.

After six hours of legal argument by the tobacco multinationals in the High Court yesterday, the Chief Justice, Robert French, raised the question of whether previous cases cited by legal counsel to support the companies’ case dealt with a product comparable to cigarettes.

Justice French put it to leading counsel Bret Walker, SC, who had referred to cases dating back to the 1870s in the United States, that none related to a product on the market that carried the risk of serious or fatal disease to all who used it.

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”Doesn’t this put it into a different category?” Justice French asked.

Mr Walker said there was no case dealing with public health in the context of this constitutional challenge that he could produce.

He is appearing for two of the five tobacco companies challenging the constitutional right of the federal government to introduce plain packaging at the end of this year. This measure would require the removal of all trademarks and logos from cigarette packets which would have to be coloured a uniform brown and carry prominent health warnings and images.

The companies, British American Tobacco, Philip Morris, Imperial Tobacco, Van Nelle Tabak Nederland and JT International SA, have argued the measure breaches the constitutional requirement that the acquisition of property by the government be on just terms.

To make the case that the government’s measures involve an acquisition, the companies have to show that the government gains a measurable benefit as a consequence, that is apart from the claimed benefits to the public’s health.

The Commonwealth Solicitor-General, Stephen Gageler, SC, later yesterday opened the defence case declaring there could be no acquisition of property unless it could be shown that property had been taken.

Mr Gageler said it would be “incongruous” for the government to compensate a company for requiring a measure that had as its purpose the prevention of harm to the public.

He took up the example of Ratsak rat poison, previously raised in the hearing, as a product where the company was required to print a warning on the pack to keep it away from children.

To liken it to the aim of the plain packaging measures, Mr Gageler said it would be inconceivable for rat poison companies to be paid compensation if they were prohibited from making the product package appealing to children.

The steady increase in regulation of tobacco over the past 30 years might prompt the view that the companies were to be likened to ”frogs slowly boiling”, gradually having their property taken away, he said.

But Mr Gageler said that the increasing restrictions on the tobacco companies and the use of their trademark had not been associated with any diminution of their property

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