Big tobacco sues Australian government over cigarette packaging

If the Australian government succeeds in implementing the new law, many other countries may follow their example in removing all branding from tobacco packaging.

Anne Jones, chief executive of the group, Action on Smoking and Health (ASH) Australia, believes that the reason why the tobacco industry responded so drastically is not to only to keep a firm grasp on the Australian smoking market, but because once Australia succeeds in implementing these laws, other countries may follow suit.

The British government is said to start with consultation on plain packaging of tobacco products by the end of the year, and is drawing its strategy from the legal challenges Australia has faced as the first nation to pass such legislation.

‘€œThey [tobacco companies] are acting in Australia, because they don’€™t want any success that we have [against them] to go viral and to domino to other countries,’€ said Jones. ‘€œBecause the tobacco industry is so powerful and threatening, I think some countries have been waiting to see how Australia gets it [the law] through. I think all the lessons learned will be quickly looked at by other countries to see how best it can be done.’€

Drab dark brown packs

According to the new law, all cigarettes will be sold in drab dark brown packs and no trademark brand logos will be permitted on any packaging of tobacco products. Companies will be able to print their name and the cigarette brand in a small, prescribed font on the packets. The boxes will carry stark health warning messages and pictures, which will cover 75% of the front of the pack and 90% of the back.

The plain packaging laws were passed by Parliament in November 2011, but the introduction of the plain packaging will not come into effect until December this year. Australia is the first country to implement plain packaging laws.

‘€œAdvertising on packaging is one of the most powerful forms of tobacco advertising and promotion,’€ Jones told Health-e. She explained that research has found that ‘€œdeglamourising’€ tobacco packaging reduces the appeal of the packet, and therefore also impacts on the number of young people who are likely to smoke. Plain packaging also removes misleading and deceptive information on the packs, such as light colour packaging that indicates mildness.

Dr Yussuf Saloojee, executive director of the South African National Council Against Smoking (NCAS) said that the plain-packaging law is intended to reduce the appeal of cigarettes to children, ‘€œand this is something governments everywhere, including our own, are trying to achieve’€.

‘€œGlitzy colourful cigarette packs not only increase the customer appeal of the brand, but serve as a badge of identity,’€ Saloojee explained. ‘€œBadge products are particularly important to adolescents in that it becomes a status symbol. A ‘drab dark brown’ pack would not confer much status.’€

Response by the tobacco industry

Manufacturers British American Tobacco, Philip Morris, Imperial Tobacco and Japan Tobacco International (JTI) are arguing that plain packaging violates the Constitution because the Australian government is trying to take away their brand names without providing any compensation. The three-day hearing will start on April 17 in Canberra.

“The government can’t take away valuable property from a legal company without compensation,” said Scott McIntyre, spokesman for British American Tobacco Australia. McIntyre said the company’s brands, including Winfield and Benson & Hedges, were worth billions of dollars. “We’re a legal company with legal products selling to adults who know the risks of smoking. We’re taking this to the high court because we believe the removal of our valuable intellectual property is unconstitutional,” he said.

“The High Court of Australia will now determine claims which include the validity of these unprecedented laws. Unchallenged, the Australian government would otherwise be able to simply take the intellectual property of legal entities,” Imperial Tobacco Australia General Manager Melvin Ruigrok said in a statement.

Cigarette companies also say the plain-packaging legislation will increase the sale of illegal tobacco. “Once the packs all look the same they will be very easy to copy,” said McIntyre.

Other countries to follow suit

‘€œThese legal threats are typical tactics from the tobacco industry. But all of the legal advice that the [Australian] government has received, indicates that they won’€™t succeed. Because government has a sovereign right to protect the health of the population,’€ said Jones.

Saloojee agreed that the legal arguments put forward by the tobacco industry about the constitutionality of the proposals are feeble and would not succeed in South Africa just as they will fail in Australia. Mark Davison, a professor of law at Monash University, Australia has dismissed the claim that the proposals involve an acquisition of property by the government. Davison states: It “is not true… that the proposals would involve the government acquiring those trademarks. The government wants to restrict the use of them by their owners but has no interest in acquiring them for itself’€.

‘€œWhile the manufacturer’€™s case is weak, a primary aim of this futile challenge is to intimidate other governments thinking of following the Australian lead into backing down,’€ said Saloojee. ‘€œThe South African government has already shown it is not easily intimidated by the industry’s legal threats.’€

In South Africa, the Department of Health is currently implementing new regulations that will require graphic images to appear on tobacco packaging, said Fidel Hadebe, spokesperson for the Ministry. ‘€œWe are not looking at plain packaging at the moment, but tobacco control is an ongoing process, so we’€™ll see,’€ said Hadebe.  

Sources: Sydney Morning Herald, The Telegraph


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