Would removing all attractive and promotional features in cigarette packaging prevent young people to start smoking? Would standardizing font, size, and color on brands of tobacco products make it easier for people to quit smoking? Is restricting the use of trademarks on the pack of cigarettes necessary to pursue tobacco control?
From December 2012, in Australia it is mandatory for cigarettes to be sold in drab dark brown packages without logos or advertisement, illustrated with graphic health warnings covering 75 percent of the front of the pack and 90 percent of the back, and with the name of the product printed in a standardized small font.
In response to Australia’s measure, several legal challenges have been brought: a constitutional action before the High Court of Australia, an investment claim under the Hong Kong-Australia Bilateral Investment Treaty, and several requests for the initiation of dispute settlement proceedings before the World Trade Organization (WTO).
Ukraine was the first WTO Member followed by Dominican Republic, Honduras, and Cuba claiming that Australia’s plain-packaging scheme is inconsistent with WTO rules, particularly with intellectual property rights.
The defense of Australia is based on the fact that the measure is not discriminatory as it applies equally to all tobacco products from all countries and that it is based on years of research showing that standardized packaging will reduce the appeal of tobacco products and enhance the effectiveness of health warnings.
In the event that the complainants get a favorable ruling, the WTO’s Disputes Settlement Body would have the power to authorize retaliatory trade measures against Australia if the country failed to put the illegal measure into conformity with its WTO obligations.
Although we will have to wait some time until the dispute is decided, it becomes relevant that the plain-packaging in Australia is being closely watched by other countries such as New Zealand that has announced its intention to introduce similar legislation and France, India, South Africa, the United Kingdom and the European Union which are also considering stricter packaging laws for tobacco products.
In response to this trade battle, the World Health Organization has expressed that a favorable ruling for the plain-packaging will result in a “brave new world of tobacco control”.
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