Download the Policy Brief: IS IT LEGAL?

1. Tobacco companies say plain packaging is unlawful – is this true?

Example of plain packaging with graphic image of smoking caused periperal vascular disease

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.

If adopted using appropriate national administrative, constitutional and legislative arrangements then there is no inherent reason why plain packaging should be found unlawful.

2. Legal challenges to plain packaging laws:

All the legal challenges decided, as of the end of 2016, have upheld the legality of plain packaging of tobacco products:

Australia Flag
AUSTRALIA—
  • Constitutional challenge in Australia High Court1dismissed August 2011
  • International investment arbitration claim2dismissed December 2015
  • Complaint before the WTO dispute panel - dismissed June 2018.
United Kingdom Flag
UNITED KINGDOM—
  • 5 claims in the High Court of England and Wales3dismissed in May 2016.
  • High Court ruling upheld by Court of Appeal in December 2016
France Flag
FRANCE—
  • Constitutional Court referral4 dismissed January 2016
  • 6 challenges in the Conseil d’Etat5dismissed December 2016.
Ireland Flag
IRELAND—
  • Challenge in the High Court6struck out November 2016
European Union Flag
EUROPEAN UNION—
  • Challenge to the EU Tobacco Products Directive in the EU Court of Justice7dismissed May 2016
Norway Flag
NORWAY—
  • Injunction application to prevent plain packaging on snus tobacco8 - dismissed November 2017

3. Do plain packaging of tobacco products breach intellectual property laws?

The tobacco companies argue that once they have registered their trademarks they have a ‘right to use’ those trademarks. But international intellectual property treaties deal 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 rules8

4. Other Legal issues in brief

What do the tobacco companies claim; and what have the courts ruled?

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’
  • UK High Court: “the Secretary of State has adduced ample evidence to support the suitability and appropriateness of the Regulations.”[¶35]
  • France Conseild’Etat: “neither the legislature nor the regulatory authorities have … disregarded a fair balance between the requirements of the public interest and the protection of the right of property” [¶29 translated]
  • Australia High Court: plain packaging requirements “are no different in kind from any legislation that requires labels that warn against the use or misuse of a product.” [¶181]
II. The evidence does not support that the policy will work to reduce smoking rates.
  • UK High Court: “In my judgment the qualitative evidence relied upon by the [Government] is cogent, substantial and overwhelmingly one-directional in its conclusion” that plain packaging will be effective. [¶592]
  • France Conseil d’Etat: “It is nevertheless clear from other studies and expert reports cited by the Minister of Health, that plain packaging may reduce the attractiveness of tobacco products and to change the perception of consumers”[¶28]
III. Plain packaging is an ‘expropriation’, ‘deprivation’ or ‘acquisition’ of the property rights in their trademarks.
  • France Constitutional Court: “Thus an expropriation is not at issue here … but a limitation of the rights of property justified by the objective of protecting public health” [¶20 translated]
  • Australia High Court: “neither the Commonwealth nor any other person acquired any property” [Official court summary]
IV. Plain packaging is incompatible with intellectual property laws and the ‘right to use’ a trademark.
  • UK High Court: “It is no part of international, EU or domestic common law on intellectual property that the legitimate function of a trade mark (i.e. its essence or substance) should be defined to include a right to use the mark to harm public health.”[¶40]
V. Plain packaging breaches World Trade Organisation rules and international treaties
  • France Conseil d’Etat: The provisions in the WTO TRIPS and the Paris Convection “do not in any event prohibit States parties from exercising the option, which is always open to them, to adopt measures necessary to protect public health, which can be applied, where appropriate depending on the objective, to certain categories of products.” [¶22 translated]
VI. Plain packaging breaches World Trade Organisation rules and international treaties
  • UK High Court: The claim includes “a challenge to the right to conduct business under Article 16 of the Fundamental Charter which it is said the Regulations violate. As to this it is clear from case law that this is (for obvious reasons) a highly circumscribed right and all manner of different laws and regulatory measures (tax, environmental, health and safety, etc) limit the freedom that business otherwise enjoys to do as it pleases…This ground adds nothing new to the other legal challenges.” [¶41]

More detail on what the courts have said when dismissing the tobacco industry legal claims can be found on the LEGAL ISSUES IN DETAIL pages.

Notes
  1. JT International SA v Commonwealth of Australia [2012] HCA 43, High Court of Australia, Order August 15, 2012, Reasons October 5, 2012
  2. Philip Morris Asia Limited v. The Commonwealth of Australia. PCA Case No. 2012-12
  3. R (British American Tobacco &Ors) v Secretary of State for Health [2016] EWHC 1169 (Admin)
  4. LE CONSEIL CONSTITUTIONNEL Décision n° 2015-727 DC
  5. CE, 23 décembre 2016, société JT International SA, Sociétéd'exploitationindustrielle des tabacs et des allumettes, société Philip Morris France SA et autres
  6. JTI v Minister for Health, Ireland and the Attorney General is 2015/2530P
  7. Philip Morris Brands SARL and Others v Secretary of State for Health C-547/14
  8. Swedish Match v. The Ministry of Health and Care Services. Commercial Court case No 17-110415TV-OBYF.
  9. A 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