the-arguments 2: less-restrictive-alternative-measures
The tobacco companies make this argument because it is important for some of the legal tests on the justification or proportionality of a regulatory measure. For instance, under Article 2.2 of the WTO Technical Barriers to Trade agreement, a technical measure should “not be more trade-restrictive than necessary to fulfil a legitimate objective.”
The legal test as to whether or not a measure is necessary involves considering if there are less restrictive alternatives that would have an equal effect in achieving the public health objective
The tobacco companies all argue that there are less restrictive measures than plain packaging. The alternatives the companies put forward as being effective and proportionate solutions include:
Many of the tobacco company consultation submissions listed here include the position that these alternative measures should be introduced instead of plain packaging and that they would be more effective at reducing smoking rates and would be less restrictive on trade and intellectual property rights.
These arguments were also included in the legal challenges to plain packaging regulations in the UK and France.
For instance, in the High Court judgment from the UK:
“The Claimants submit that the Secretary of State has failed to prove that standardised
packaging is proportionate because the evidence does not show that there are no equally
effective but less restrictive alternatives …“The Claimants submit that the Secretary of
State has failed to prove that standardised packaging is proportionate because the
does not show that there are no equally effective but less restrictive alternatives
PMI contends that there is a less restrictive and more effective alternative policy available to the Government, namely taxation . . . . They rely upon the expert evidence of Professor Mulligan who argued that taxation was a tobacco control policy “that obviously works” . . . . This is “. . . all the Court needs to know to conclude that standardised packaging is unlawful: there is a less restrictive and more effective policy alternative available.”
It is notable that, in the context of plain packaging, the tobacco companies argue that higher taxation, even in an already high tax market, is a policy that “obviously works” to reduce smoking rates. Where the tobacco companies seek to resist tax increases they argue the opposite.
Also notable is that in court PMI, JTI and Imperial all abandoned any reliance on alternative measures being effective other than taxation. Only BAT continued to argue that in addition to tax, numerous alterative, less restrictive and equally effective measures could be introduced.
“Combining tax and advertising measures is in contrast a strategy which addresses
supply and demand from different angles and perspectives…
it is hard to see how a tax which reduces the profits of the tobacco companies is
more or less restrictive than advertising restrictions which achieve the same end…
taxation does nothing to change attitudes about smoking or to “denormalise” a product which for decades has been perceived as normal.” [para. 671]
“BAT floated (asserted) the possibility that other measures would suffice. No evidence has been adduced to support the contention … The Claimants’ argument amounts to mere assertion” [paras. 657 and 668]
“None of the claimed alternatives, including increased taxation, would achieve all of the objectives pursued by the Regulations and that they should be regarded instead as complementary measures forming part of a comprehensive tobacco control strategy, an approach supported by the FCTC.” [para. 243]
These court rulings highlight the importance of formally establishing the precise aims and objectives of plain packaging when developing the policy and adopting the law, and not simply relying on it being a public health measure. See Guide 1.1 Set Policy Objectives for more details