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June 2nd, 2016:

North America and Scandinavia join plain packaging ranks; tobacco industry denies the fight is lost

This week’s annual World No Tobacco Day was a landmark one for health and anti-tobacco groups, with three governments announcing imminent plain packaging measures. Canada, New Zealand and Norway all made separate announcements on their plans for standardised packaging – a move that one tobacco company tells World Trademark Review was “expected” but is not the end of the fight.

Canada became the first North American country to signal its intention to join the plain packaging fold, with minister of health, Jane Philpott, launching a “formal consultation period” that will run until August 31. This is the first tangible step the new Canadian government has made since confirming its intention to remove trademarks from tobacco products late last year. Philpott’s main argument for introducing the measure – beyond the health implications of tobacco products – is the affect branding can have on younger generations. “I don’t believe tobacco companies should be allowed to build brand loyalty with children, for a product that could kill them,” she said. “Research shows that plain packaging of tobacco products is an effective way to deter people from starting to smoke and will bolster our efforts to reduce tobacco use in Canada.”

Unsurprisingly, the Canadian Cancer Society voiced their support of the government’s announcement. The organisation’s senior policy analyst Rob Cunningham claimed that, in his view, the tobacco industry wouldn’t be kicking up a stink about standardised packaging if it were not effective: “It is precisely because plain packaging will reduce sales that tobacco companies are objecting so loudly. Tobacco companies should not be able to use the package as mini-billboards to promote tobacco. It is a highly addictive, lethal product and should not be sold in packages made to be more attractive.”

However, Igor Dzaja, general manager of tobacco company JTI-Macdonald, was quick to hit back, saying that the new Canadian government’s focus should instead be on dangerous counterfeit products being sold to young people. “Instead of implementing another misguided regulation,” he claims, “the government of Canada should be combating illegal cigarettes which are untested, untaxed, unregulated and widely available to minors at lunch-money prices.” Dzaja, who confirmed to us that JTI-Macdonald will be submitting comments to the formal consultation, went on to claim that the federal government is already lining up legislation that would restrict trademarks on other products sectors, saying it has “committed” to introducing new marketing and labelling restrictions on food and beverages. “Plain packaging affects the entire business community, not just the tobacco sector,” he adds. “If one industry is deprived of its intellectual property, all trademark owners will lose.”

Nonetheless, both New Zealand and Norway also followed suit on the same day. The New Zealand introduction (which was predicted earlier in the year) will be preceded by a two-month consultation period, but the government is hopeful that legislation will be implemented next year. The country’s prime minister, John Key, admitted that witnessing other countries adopt plain packaging has emboldened his stance on the measure – and that the fear over subsequent legal action is softening as well. “[Tobacco companies] may well take a case against the government, but the advice we have been getting over time now has been that the risks of them being successful is reducing,” Key told local reporters. Norway is also hoping to implement standardised packaging next year, and would be the first Scandinavian country to do so. As has been introduced already in Australia and the UK, the proposed packaging was announced as being dark green and with no logos or designs (it is expected the Canadian and New Zealand plain packs will follow this trend).

With three more dominoes falling in just one day – following Australia, Ireland and the UK having already implemented plain packaging, and many more announcing their intention to do so (the International Trademark Assocation has submitted their comments to three of which during the first quarter of 2016) – could the debate on the removal of trademarks from packaging be nearly over? Not according to JTI International’s director of external communications Jonathan Duce. He told us that, with the WTO expected imminently, the battle is not yet lost. “This year’s World No Tobacco Day had a plain packaging theme, so a flurry of announcements was expected,” he says. “Nevertheless, we don’t believe it is a given that all governments will go down this route, and once the evidence is reviewed, it should be clear to anyone that branding bans are flawed on many levels. Ultimately, the WTO decision will set a form of precedent and potentially set the course for future debates on other product categories.”

We, and figures from both sides of the debate, wait with bated breath for the WTO decision – it looks like it could be the tobacco industry’s final charge into battle before having to contemplate defeat.

Plain cigarette packaging an infringement against trademarks

We write as a coalition of 47 (paid to) think-tanks, advocacy groups and organisations in response to proposed plain packaging tobacco control measures, and by the announcements by several countries of their interest in such policies.

Firstly, the right to own property is a fundamental human right. Thus, the protection of property rights, physical and intellectual, is critical. Creating an environment where property rights are protected and legally enforced contributes to social and economic growth and stability.

Intellectual property rights (IPR) promote trade in developed and emerging economies. The importance of secure intellectual property rights is recognised in international treaties and conventions.

As highlighted in various studies and indexes, there is a strong positive correlation between a country’s robust intellectual property rights enforcement and gross domestic product (GDP) per capita. Additionally, the protection of intellectual property rights is crucial to the economic development of every country. This is why intellectual property rights advocates are concerned with the discussion of plain packaging policies around the world.

We, the undersigned organisations, stand against the infringement of trademarks through plain packaging. Plain packaging prohibits the use of trademarks and therefore significantly erodes the value of this intellectual property – a dangerous precedent to set for commerce in general. Denying a manufacturer the right to use its trademark to identify its product strikes at the very core principles of corporate identity and freedom.

Governments all across the world have championed the success of plain packaging (PP) and its ability to curb smoking. Yet the data suggests that the plain packaging efforts may not be as successful as these governments would have the public believe with smoking rates actually increasing in a number of Australian states in the year following the policy’s implementation.

However, the Australian National Drug Strategy Household Survey (NDSHS) 2013 data suggests that youth daily smoking may have increased from 2.5 percent in 2010 (under branded packaging) to 3.4 percent in 2013 which was the first year of plain packaging.

But, RMIT University Professor Sinclair Davidson has raised serious concerns about the results of the Australian government’s Post-Implementation Review 2016, where the results show a dramatic decrease in smoking after the introduction of plain packaging.

Professor Davidson showed that the trend line was deliberately engineered to attribute any falling smoking prevalence to plain packaging. The econometric analysis in the PIR also omits a price variable; making implicitly the incorrect assumption that price plays no role in an individual determining whether or not to consume tobacco. Thus, the Post-Implementation Review about the successes of plain packaging in Australia should be viewed with scepticism.

A critical way to provide brand information

Trademarks, brands, and logos are a critical way to provide brand information to consumers which is an assurance that they are purchasing a legitimate, quality product.

When this brand information is silenced through policies such as plain packaging, it has dangerous effects for consumers. For example, there has been a 24 percent increase in the consumption of illicit tobacco in Australia since plain packaging took effect.

By not allowing companies to use their trademarks, plain packaging forces consumers to make uninformed decisions and in many cases puts them in danger by forcing them to enter the illicit ‘black’ market in search of goods.

There has been an international trend toward plain packaging for different items such as alcohol, sugary foods, drinks, and even baby formula and toys. Indonesia has threatened to introduced plain packaging plans for alcoholic products.

The Australian government is now considering introducing graphic warning labels on alcohol, sugary drinks and food products the government believes could be considered unhealthy. South Africa has gone even further and has introduced plain packing like regulation on baby formula for infants and young children. This also includes prohibitions on any photo except those showing the correct method to preparing and using the product.

Additionally, the baby formula label cannot advertise any other designated product. Most outrageously, plain packaging has even been suggested for toys, with the argument that some toys reinforce boys to be ‘macho’ and girls to be ‘submissive’, therefore, proponents demand a public campaign for plain packaging on toys for children.

Countries renowned for their robust defense of property rights drive economic growth and stability. Weakening IPR is not only detrimental to the economy, but it can also place the public’s health and safety at risk. In order for countries to reach or remain economically successful, it needs to robustly protect and enforce IPR.

We urge governments around the world to focus on strengthening the protection of intellectual property rights instead of infringing on them by pursuing detrimental trademark infringement policies such as ‘plain packaging’.

The letter is signed by 47 (paid to) think tanks, advocacy groups and organisations and can be located here.
The Property Rights Alliance (PRA) based in Washington DC, USA stands as an advocacy organisation dedicated to the protection of physical and intellectual property rights.

Property Rights Alliance

This group works to influence legislation in opposition to the estate tax, environmental protection, licensing restrictions, federal purchase of land for national parks and wildlife areas, broadcast requirements for “multicasting,” and drug importation, as well as seizure by eminent domain.[44]

ISIS executes six for selling cigarettes in Mosul

Islamic extremists executed six men in a public square in Mosul for selling cigarettes, according to ARA News, an independent Syrian news agency.

Smoking in areas controlled by Islamic State in Iraq and Syria (ISIS) has been banned for years, the news agency said. The men were arrested and put before a Sharia court which sentenced them to death by immediate execution, according to ARA News. The execution by firing squad reportedly was witnessed by hundreds of people.