Stale News: Australia Moots Plain Packaging of Tobacco Products

Most Indians remember the brouhaha over the former Health Minister, Mr.Anbumani Ramadoss’s repeated warnings to celebrities against smoking on screen, and the promulgation of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act-2003, which banned, at least on paper, smoking in public places.

Now Australia has taken a few measures to reduce smoking rates, by proposing a law on watering down the packaging of tobacco products. The proposed legislation is called Tobacco Plain Packaging Bill, 2011, and a consultation paper on the bill is available here.

The stated objectives of this legislation are:

(a) to improve public health by:

(i) discouraging people from taking up smoking, or using tobacco products; and

(ii) encouraging people to give up smoking, and to stop using tobacco products; and

(iii) discouraging people who have given up smoking, or who have stopped using tobacco products, from relapsing; and

(iv) reducing people’s exposure to smoke from tobacco products; and

(b) to give effect to certain obligations that Australia has as a party to the Convention on Tobacco Control.

To this end, the legislation intends to regulate the packaging and appearance of tobacco products in order to:

(a) reduce the appeal of tobacco products to consumers; and

(b) increase the effectiveness of health warnings on the packaging of tobacco products; and

(c) reduce the ability of the packaging of tobacco products to mislead consumers about the harmful effects of smoking.

The goals of this proposed law are certainly laudable, and there’s no two ways about it. But, the question is, will this law run afoul of TRIPS by denying manufacturers of tobacco products the right to distinguish themselves from their competitors? Would this law amount to a technical barrier to trade? Is there no other way of tackling the tobacco menace other than by depriving manufacturers of the right to attract eyeballs?

Some of these questions seem to have been raised by the Dominican Republic in its objections to the proposed law. Further, the Dominican Republic has said that introduction of plain packaging might lead to predatory pricing, thereby facilitating greater tobacco consumption, besides making counterfeiting easier.

Australia, on the other hand, seems to have fallen back on the “public health” argument to justify these proposed measures. It said that plain packaging and the potential for counterfeiting may make it imperative for manufacturers to introduce anti-counterfeiting labelling, which would make cigarettes expensive, and hence bring down smoking rates.

Among the nations which have supported Australia’s stance are India, Brazil and Cuba, which have taken the view that countries have a right to take a decision in the interest of public health without IP becoming a stumbling block. This view draws support from the 2001 Doha Declaration on TRIPS and Public Health.

This issue promises to turn out to be an interesting one. We’ll certainly keep our eyes and ears peeled to developments on this front.