nav 2: is-it-lawful
Plain packaging laws have been upheld as lawful by national, regional and international courts and tribunals which have found the arguments put forward by the tobacco companies to be flawed.
Plain packaging is recommended in the implementation guidelines to Article 11 and 13 of the WHO Framework Convention on Tobacco Control – one of the most widely ratified international treaties in the world. For more details see here
If adopted using appropriate national administrative, constitutional and legislative arrangements then there is no inherent reason why plain packaging should be found unlawful.
All the legal challenges decided, as of the end of 2016, have upheld the legality of plain packaging of tobacco products:
AUSTRALIA
UNITED KINGDOM
FRANCE
IRELAND
EUROPEAN UNION
The tobacco companies argue that once they have registered their trademarks they have a ‘right to use’ those trademarks. But international intellectual property treatiesdeal with registration procedures and how trade mark owners can stop others from using their marks. International rules do not give the owners of registered trademarks a ‘right to use’ them that overrides a states’ powers to regulate for the public good.
The court rulings dismissing the legal challenges in Australia, France and the United Kingdom have all been clear - plain packaging does not breach either domestic or international intellectual property laws and obligations.
The High Court in Australia pointed out that plain packaging is no different in kind from other packaging or labelling requirement.
As far back as 1994, disclosed internal industry documents show that the tobacco companies had advice from their own lawyers and from the World Intellectual Property Organisation (WIPO), that plain packaging would not contravene the international intellectual property rules 8
Below are some examples of what the courts have said in dismissing the tobacco companies’ legal claims against plain packaging. [paragraph numbers from judgments given in square brackets].
I. Plain packaging is not ‘justified’, ‘necessary’ or ‘proportionate’
II. The evidence does not support that the policy will work to reduce smoking rates.
III. Plain packaging is an ‘expropriation’, ‘deprivation’ or ‘acquisition’ of the property rights in their trademarks.
IV. Plain packaging is incompatible with intellectual property laws and the ‘right to use’ a trademark.
V. Plain packaging breaches World Trade Organisation rules and international treaties
VI. Plain packaging breaches World Trade Organisation rules and international treaties
1JT International SA v Commonwealth of Australia [2012] HCA 43, High Court of Australia, Order August 15, 2012, Reasons October 5, 2012
2Philip Morris Asia Limited v. The Commonwealth of Australia. PCA Case No. 2012-12
3R (British American Tobacco &Ors) v Secretary of State for Health [2016] EWHC 1169 (Admin)
4LE CONSEIL CONSTITUTIONNEL Décision n° 2015-727 DC
5CE, 23 décembre 2016, société JT International SA, Sociétéd'exploitationindustrielle des tabacs et des allumettes, société Philip Morris France SA et autres
6JTI v Minister for Health, Ireland and the Attorney General is 2015/2530P
7Philip Morris Brands SARL and Others v Secretary of State for Health C-547/14
8A full history and explanation of the disclosed documents relating to plain packaging is produced by Smoke-Free Canada and can be found here: http://www.smoke-free.ca/pdf_1/plotagainstplainpackaging-apr1'.pdf