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The tobacco industry has a long track record of using legal challenges to prevent or delay governments’ tobacco-control measures. Countries that were early adopters of plain packaging laws have faced legal challenges in domestic and regional courts, in international investment arbitration tribunals, and under the World Trade Organization dispute settlement procedures. All the legal challenges decided, as of the end of 2017, have upheld the legality of plain packaging of tobacco products.
The tobacco industry has a long track record of using legal challenges to prevent or delay governments’ tobacco-control measures. Countries that were early adopters of plain packaging laws have faced legal challenges in domestic and regional courts, in international investment arbitration tribunals, and under the World Trade Organization dispute settlement procedures. All the legal challenges decided, as of the end of 2017, have upheld the legality of plain packaging of tobacco products.
The key message is that if plain packaging of tobacco products is adopted using appropriate domestic constitutional, administrative, and legislative arrangements, then there is no inherent reason why plain packaging should be found unlawful. However, this Toolkit can only provide generalized legal information taking into account the academic literature and the results of legal challenges that have already been decided across different jurisdictions. To protect the policy in the face of legal challenge, it is important to undertake the appropriate processes and sound legal drafting. The procedural steps and drafting advice set out in this Toolkit should provide a good grounding for the administrative processes and legislative drafting needed to secure a robust plain packaging law.
The tobacco industry continues to aggressively assert that plain packaging is unlawful in countries considering the policy, even though industry legal challenges have all so far been defeated in Australia, the UK, France and the European Union. There are similar broad themes to the legal arguments used by the industry across jurisdictions. They are that plain packaging:
These issues may arise out of domestic laws or constitutions, regional obligations or international law. More explanation of these issues is set in the LEGAL ISSUES page of the Tools and Resources
There have been a number of legal challenges to plain packaging laws already decided and some that are ongoing (as of May 2017, the time of writing), all the challenges that have been etermined have resulting in the claims being dismissed. More details about these cases are given in the CASE SUMMARIES page of the Tools and Resources
These rulings express legal principles and decisions that will be of value to lawyers in other jurisdictions that may have to defend plain packaging in their own countries. The judgments also contain clear and concise passages that will help policy makers and civil society organizations to provide information about the policy or promote its implementation. These are explored in more detail in the LEGAL ISSUES page of the Tools and Resources but here are some highlights: