Public Health and Plain Packaging of Cigarettes

Public Health and Plain Packaging of Cigarettes

Legal Issues

Edited by Tania Voon, Andrew D. Mitchell, Jonathan Liberman and Glyn Ayres

The book offers an in-depth exploration of relevant domestic and international legal questions in fields such as intellectual property, constitutional law, health, trade and investment. The authors’ analysis sheds light on broader questions relating to the capacity of governments to regulate tobacco products and the tobacco industry, and to regulate in the interests of public health more generally. The answers to these questions are of vital interest not only to Australia but also to the international community, with states’ regulatory sovereignty increasingly being challenged in local and international courts and tribunals.

Chapter 4: Plain Packaging of Cigarettes and Constitutional Property Rights

Simon Evans and Jason Bosland

Subjects: law - academic, health law, intellectual property law, international economic law, trade law, international investment law, public international law


Simon Evans and Jason Bosland* INTRODUCTION I. Australia is the first country in the world to take steps to require that tobacco products be sold in plain packaging.1 On 6 July 2011, the government introduced the Tobacco Plain Packaging Bill 2011 (‘the Bill’ or ‘the plain packaging legislation’) into the House of Representatives, with the intention that it be passed during the Winter 2011 Parliamentary sitting and in force by 1 January 2012. If passed, the Bill will allow regulations to be made to prevent tobacco manufacturers applying their trademarks to the packaging of tobacco products manufactured or sold in Australia, with the exception that brand and product names could be used in a prescribed font and within a specified place on the packaging. Importantly, such products will not be able to be labelled using device trademarks or word trademarks in a stylised font or script. In addition, the packaging must be in a plain colour (‘drab dark brown’)2 without any other decoration. Under the proposed measure, plain packaging will only apply to material likely to be encountered by the retail customer and, therefore, will not apply to wholesale or shipping packaging. The tobacco companies view the government’s proposal as an interference with their trademark rights (as well as potentially other intellectual property rights) and have suggested that it is unlawful on two separate bases. First, they have raised the possibility that the measure is not compli- * We gratefully acknowledge Thomas Bland’s assistance with research and in preparing this...

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