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Trade pact could weaken Australia’s tobacco fight

Description: One example of the 'ugly' cigarette packet packaging unveiled by the Federal Government

Photo: Ukraine and Honduras contend the planned packaging laws unfairly restrict trade. (Supplied)

Related Story: Plain packaging hearing wraps up in High Court

Related Story: NZ set to follow Australia’s lead on plain packaging

Map: Australia

There are concerns a new trade agreement between the US, Australia and several other Pacific nations could weaken Australia’s defences against challenges to its planned tobacco packaging laws.

Australia looks set to be hit with a third complaint at the World Trade Organisation (WTO) about its planned tobacco packaging laws.

British American Tobacco, Imperial Tobacco and Philip Morris have launched High Court challenges against the Australian legislation, which would force them to use drab packaging with disturbing images of the health impacts of smoking.

Ukraine and Honduras have already launched trade disputes over the issue, and there are reports the Dominican Republic is about to join the complaint.

None of those three countries has a significant share of the Australian tobacco market, but they contend the planned laws unfairly restrict trade.

The head of the Federal Health Department, Jane Halton, says the tobacco companies are providing legal advice to WTO members to encourage them to take action against Australia.

She spoke about it in a video message for the World Health Organisation.

“All of these actions are designed to try to intimidate the Australian Government and Australian officials to actually ask us to relent in our efforts to protect the public health of our citizens,” she said.

Associate Professor Andrew Mitchell, from the University of Melbourne Law School, says big tobacco is concerned that if Australia is allowed to introduce new restrictions on tobacco advertising, other countries that have more lucrative markets will follow.

“And also, by using other countries as a proxy, it creates the appearance that plain packaging is opposed by entities other than just big tobacco,” he said.

Professor Mitchell’s colleague, Associate Professor Tanya Voon, says the WTO challenge is likely to slow down any knock-on effect the Australian initiative may have.

Audio: Trade deal may blunt tobacco fight(PM)

“They can have a chilling effect because of the time taken and the resources spent in defending the challenge,” she said.

“And that’s true regardless really of whether the challenges have a legal basis and whether they succeed or not.”

Dr Matthew Rimmer, associate professor in intellectual property at the Australian National University, says this challenge is unlikely to succeed.

“The Ukraine would have more chance of winning the UEFA Cup football competition then they would of winning this WTA action,” he said.

But he says Australia needs to ensure its plain packaging regime is not vulnerable to challenge under the Trans-Pacific Partnership.

Negotiations over the Trans-Pacific Partnership have been going on behind closed doors for more than two years.

Today, a key chapter was leaked, showing Australia has refused to agree to a system of tribunals which would be used by private companies to sue governments for breaches of trade conditions.

Australia’s objection to investor-state dispute settlement provisions is already on the public record.

In the WTO case, Australia also has a public health defence, but Dr Rimmer is worried the Trans-Pacific Partnership will not leave any room for one.

“There’s a concern that a very expansive intellectual property chapter in the Trans-Pacific Partnership might help tobacco companies,” he said.

“There is a concern about the regime limiting the array of tobacco control measures that could be taken by a member of the partnership.

“I guess the problem is further complicated by the fact that the negotiations are being held in secret.”

The Federal Government has vowed to defeat the current challenge at the WTO.

A spokeswoman for Attorney-General Nicola Roxon says the measures are not anti-trade, they are anti-cancer

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