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Cigarette companies sue over plain packaging regulations

Elaine Yau (
May 08, 2012 South China Morning Post, Hong Kong

Smokers in Hong Kong might soon have trouble telling brands of cigarettes apart as the government toys with the idea of demanding plain packaging to combat tobacco consumption.

Hong Kong is among about half a dozen jurisdictions that met recently to discuss the feasibility of such a move, says Judith Mackay, senior adviser with the World Lung Foundation.

Mackay says she has been talking to the Hong Kong government about plain packaging for some time, although the government is “not quite ready to implement it”.

“Many countries, including Hong Kong, are waiting to see what happens in Australia. We need a precedent before we go forward,” she says.

On December 1, Australia will adopt the world’s first plain packaging legislation, which bans the use of the brand logo, symbols, other images or promotional text on tobacco products. The country is taking the lead in implementing Article 13 of the World Health Organisation (WHO) Framework Convention on Tobacco Control. This says “a comprehensive ban on advertising, promotion and sponsorship would reduce the consumption of tobacco products”.

Cigarettes will be sold in drab packages with graphic images of tobacco-related diseases and warnings that occupy 75 per cent of the area of the box. No trademark logos will be permitted on any packaging of tobacco products, although firms will be able to print their name and the brand in a small, prescribed font on the packets.

“The smoking rate dropped from 30.5 per cent in 1998 to 15.1 per cent in 2010 in Australia, but we still expect 15,000 Australians to die from smoking every year,” says Jane Halton, secretary of Australia’s Department of Health and Ageing.

Packaging, she says, is one of the last forms of tobacco advertising and must be removed. Her sentiments were echoed by authorities and experts at the 15th World Conference on Tobacco or Health in Singapore in March.

The tobacco industry is fighting back. Australia has been sued by Hong Kong-based tobacco giant Philip Morris Asia, which alleges that plain packaging amounts to unlawful expropriation of the company’s investments and valuable intellectual property without compensation.

Australia has also been sued in its High Court by the tobacco industry. “The reaction from the industry is not surprising, but they are becoming more extreme and subversive,” says Halton. “We reject the claims filed by Philip Morris. Our arbitrators will hear the case.”

Philip Morris moved its business from Australia to Hong Kong soon after the Australian government announced its decision on plain packaging in April 2010.

Since the announcement, Halton says her department has received 53 “freedom of information requests” relating to plain packaging from the tobacco industry – a tactic aimed at slowing the bureaucracy down.

“The requests are designed to ensure we are required to examine hundreds of files and tens of thousands of documents for potential release. [The industry wants to] tie up funding and resources within my department to ensure we have less time to implement this law,” she says.

“We will not be deterred by the threats and will fight this incredibly vigorously.”

Uruguay, Norway and Turkey are also countering legal challenges from the tobacco industry regarding their tightened tobacco control measures.

WHO director general Margaret Chan Fung Fu-chun says the chain of legal action taken by the tobacco industry shows its desperation. “I take it as an indication that big tobacco sees the writing on the wall,” she says. “These are the death throes of the industry.”

Chan applauded Australia’s resolve in curbing tobacco consumption. “We must make plain packaging a big success so that it becomes the success of the world,” she says.

Simon Chapman, professor in public health at the University of Sydney, says it’s ludicrous for the tobacco industry to take the Australian government to court – alleging the government is acquiring valuable intellectual property and using it to make money.

A spokesman for the Hong Kong Health Department says it will consider whether to adopt plain packaging legislation. In 1994, it became mandatory for cigarette packs sold in Hong Kong to carry written warnings. Graphic health warnings, which have to occupy half of a packet’s area, were introduced in 2007.

Article 11 of WHO’s convention – which was enacted in 2005 and has 174 countries signed up so far – compels parties, within three years of joining the convention, to have tobacco product health warnings that cover at least 30 per cent (and preferably 50 per cent) of the visible area on a cigarette pack. Singapore, the first country in Asia to implement graphic health warnings on packets, will introduce a new set of health warnings that use gory and emotional images from next March.

“What [the tobacco industry] wants to see is a domino effect,” says Chan. “When one country’s resolve falters under the pressure of costly, drawn-out litigation and threats of billion-dollar settlements, others with similar intentions are likely to topple as well.”

Chan says no commercial interest should undermine public health measures to protect people. Article 5.3 of the WHO convention on tobacco control gives countries the space and legitimacy to take such actions.

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