The New Intellectual Property of Health

The New Intellectual Property of Health

Beyond Plain Packaging

Edited by Alberto Alemanno and Enrico Bonadio

This timely book provides the first legal and policy analysis of the intellectual property (IP) aspects of a rapidly-growing category of regulatory measures affecting the presentation and advertising of certain health-related goods, namely tobacco, alcohol, food, and pharmaceuticals.

Chapter 1: Unpacking plain packaging and other standardization requirements in the light of behavioural sciences

Alberto Alemanno

Subjects: law - academic, health law, intellectual property law


Plain packaging epitomizes the emergence of a broader, rapidly growing category of regulatory requirements affecting the presentation of products – as diverse as tobacco, alcohol and infant formulas – by standardizing their packaging. While information schemes have existed for a long time, with the aim of overcoming the information asymmetries typical of credence products, the focus of these more recent forms of packaging-related requirements is now shifting to another policy goal, limiting the consumption of those products that have been identified as unhealthy or at least hazardous due to their constituents and effects. The means used by policymakers to achieve their informational and dissuasive ends include disclosure schemes (for example, labelling), presentation requirements (for example, mandatory warnings and other space appropriation measures) and advertising restrictions (for example, prohibition of use of images, design or brands), whose mutual effect is to standardize the presentation of the final product. Given the prominent role played by the appearance and certain fancy constituents of the products at issue, as typified by their trade dress, public authorities seem ready to offset marketing techniques – used since the 1960s – that are increasingly used to market not only tobacco and alcohol but also other less controversial products, such as food and pharmaceuticals. It is in the light of the above that governments around the world are determined to restrict the ability of manufacturers in the relevant industries to produce, promote and market their goods as they wish – and to make the products appealing to consumers.