Plain Packaging Fully Compliant with International Intellectual Property Regime

The plain packaging of tobacco is a public health policy that removes the promotional and advertising features of tobacco packs, while leaving the brand and product names on the packs so that smokers can distinguish their tobacco brand. Banning tobacco advertising on TV and billboards is accepted as a sensible public health policy around the globe. Removing the ability of big tobacco companies to advertise through the packaging of their deadly product just makes common sense.

Let’s not forget that tobacco kills 6 million people a year and that most people become addicted to tobacco when they are under 18 years old, with young people being more susceptible to the effects of branding and imagery.

The tobacco industry has for many years tried to promote false claims that plain packaging of tobacco would be unlawful and would breach international intellectual property rules. The companies manufactured these legal arguments in the 1990s, but disclosed internal documents demonstrate that the advice from their own lawyers and from the World Intellectual Property Organization at that time was that plain packaging would not breach either the Paris Convention (treaty on intellectual property protections) or national intellectual property laws.

Countries across the globe are now adopting plain packaging to protect future generations from the effects of glitzy tobacco branding and promotion. Australia was the first to implement the policy in 2012 and France and the UK now have laws fully in force. Other countries that have adopted plain packaging law which are due to come into force in the next few years include Ireland, Hungary, New Zealand, Slovenia, Norway, Romania and Thailand. Many other countries such as Canada, Uruguay and Singapore are formally considering the policy with strong political commitments. The governments in all these countries have carefully considered their international commitments and the alleged impacts on intellectual property rights and have decided to proceed.

However, the tobacco companies continue to argue that plain packaging will breach the World Trade Organization (WTO) Trade Related Aspects of Intellectual Property (TRIPS) and the Technical Barriers to Trade (TBT) agreements. But these arguments are becoming increasing unsustainable in the light of judicial decisions from around the globe that have dismissed all the tobacco industry’s legal challenges to plain packaging laws.

Part of the recognized strategy of the tobacco industry is co-opt third party organizations and “experts” to make their arguments for them. This has been seen in the tobacco companies’ opposition campaigns in every country that has taken plain packaging forward. The organizations then parrot the tobacco industries’ flawed arguments. Rarely are these organizations independent of tobacco industry money and sometimes they are in effect proxy organizations established by the industry specifically to provide the appearance of independence.

In each country the arguments promoted by the industry are very similar. They include that there is no evidence to support plain packaging being effective; that plain packaging will breach the WTO agreements; that introducing the policy will undermine a country’s reputation for intellectual property protection; and that plain packaging of tobacco is the start of a slippery slope which will lead to plain packaging of other unhealthy products such as alcohol or unhealthy foods.

The Evidence

Five independent systematic evidence reviews have been published that consider over 70 peer-reviewed scientific research studies, notable for their breadth and diversity of methods and for strong consistency in showing that plain packaging will contribute to reducing smoking rates. There is also four years’ post-implementation research and statistical data from Australia, all of which points towards the measure being effective.

The Chantler Review from the UK stated that all the evidence “points in a single direction, and I am not aware of any convincing evidence pointing the other way.”

None of the studies used by the tobacco industry to oppose plain packaging has been peer reviewed; almost all were funded by the industry and they have been the subject of serious criticism by academics and judges for their flawed methodology.

The official statistical evidence from Australia shows an increase in the rate of decline of both smoking prevalence and tobacco consumption after implementation. The Post-Implementation Review (PIR) analysis attributes a 0.55 percentage point reduction in smoking rates to plain packaging, equivalent to 118,000 fewer smokers over the 34 months after implementation.

Tobacco plain packaging does not breach the WTO Agreements

The WTO agreements are not designed to prevent members from implementing genuine public health measures. This was affirmed in the WTO Doha Declaration on the TRIPS Agreement and public health which states that “the TRIPS Agreement does not and should not prevent members from taking measures to protect public health.”

The preamble to the TBT agreement recognizes “that no country should be prevented from taking measures necessary to ensure the quality of its exports, or for the protection of human, animal or plant life or health…”

These principles have been confirmed by the courts that have dismissed all the tobacco company legal challenges to plain packaging laws. In the UK, for instance, the High Court ruled that “It is no part of international, EU or domestic common law on intellectual property that the legitimate function of a trademark (i.e. its essence or substance) should be defined to include a right to use the mark to harm public health.”

And in France, the Conseil d’État ruled that the provisions in the WTO TRIPS and the Paris Convection “do not in any event prohibit States parties to exercise the option to adopt measures necessary to protect public health, which can be applied, where appropriate depending on the objective, to certain categories of products.”

No damage to the reputation for Intellectual Property protection

The Property Rights Alliance (PRA) is a “special project” and “affiliate” of the Americans for Tax Reform (ATR). The ATR has known financial links to the tobacco industry and frequently allies itself to RJ Reynolds and Philip Morris.

The PRA has also been a strong opponent of plain packaging of tobacco and its Director, Lorenzo Montanari, has claimed that “The Georgia plain packaging policy might affect the IP system in Georgia…” and that the Georgian government should not “support the final implementation of this detrimental policy against IP”.

The PRA publishes an annual International Property Rights Index (IPRI) which seeks to quantify countries’ protection of property rights, including intellectual property.

Strangely, the PRA position completely ignores what has happened in the countries that have adopted plain packaging, where the IPRI scores have increased or remained the same. Australia first proposed plain packaging in 2008 and that time its IPRI score was 7.8 but in 2016 it had a score of 8.2 for intellectual property rights. The UK proposed plain packaging in 2012 when its score was 8.2. After implementing plain packaging in 2016 its score for intellectual property rights was 8.4. Similar increases occurred in France, Norway, New Zealand and Ireland.

This is because plain packaging has no impact on intellectual property rights. The IPRI scores are based on a survey of experts on intellectual property in each country by the World Economic Forum. The experts in each of these countries clearly see no detrimental impact based on the adoption of plain packaging.

No Slippery Slope

The tobacco industry tries to promote the myth that plain packaging of tobacco will inevitably lead to plain packaging of other products. There is no evidence to support this idea. The World Health Organization does not recommend plain packaging for any products other than tobacco. Its view is that tobacco products are uniquely harmful and there is a body of evidence that shows plain packaging of tobacco will be effective. The stated aim of many governments is to eradicate all tobacco use and have a tobacco free society. This is not the goal for other potentially harmful products such as alcohol or sugary foods. Branding on other products is not at risk but the advertising effects of tobacco packaging should be removed.

The Tobacco Control Alliance

29 June 2017 19:23