Plain tobacco packaging
Plain tobacco packaging, also known as generic, standardised or homogeneous packaging, refers to packaging that requires the removal of all branding (colours, imagery, corporate logos and trademarks), permitting manufacturers to print only the brand name in a mandated size, font and place on the pack, in addition to the health warnings and any other legally mandated information such as toxic constituents and tax-paid stamps. The appearance of all tobacco packs is standardised, including the colour of the pack.
Australia is the only country that currently mandates plain tobacco packaging, as a result of laws that were enacted in 2012. Plain tobacco packaging is currently being introduced in the United Kingdom and Ireland, and these requirements will respectively come into effect in May 2016 and May 2017.
Public health officials in Canada developed proposals for plain packaging of tobacco products in the 1990s. A parliamentary committee reviewed the evidence and concluded that plain packaging could be a “reasonable step in the overall strategy to reduce tobacco consumption”. The committee recommended that legislation be implemented pending the outcome of government-sponsored research on the likely effectiveness of plain packs. However following tobacco industry lobbying and changes in government ministers the proposal was dropped.
Australia, with the enactment of the Tobacco Plain Packaging Act in 2011, became the first country in the world to require tobacco products to be sold in plain packaging. Products manufactured since October 2012, and all on sale since 1 December 2012 must be plain packaged. In June 2014 Ireland announced it was proposing legislation that would make it the first country in the European Union and the second in the world to introduce plain packaging. Ireland's minister for health published details of the government's proposed Public Health (Standardised Packaging of Tobacco) Bill 2014 on 10 June 2014.
Evidence and criticisms
Direct, concrete evidence of plain packaging’s effectiveness was unavailable until its release in Australia. On 24 May 2011, Cancer Council Australia released a review of the evidence supporting the introduction of plain packaging to reduce youth uptake. The review had been conducted by Quit Victoria and Cancer Council Victoria. The review includes 24 peer-reviewed studies conducted over two decades, suggesting that packaging plays an important role in encouraging young people to try cigarettes. First impressions in Australia indicated that smokers feel that cigarettes taste worse in plain packaging – an unexpected side effect. In addition, evidence from quantitative studies, qualitative research and the internal documents of the tobacco industry consistently identify packaging as an important part of tobacco promotion.
Studies comparing existing branded cigarette packs with plain cardboard packs bearing the name and number of cigarettes in small standard font, found plain packs to be significantly less attractive. Additionally, research in which young adults were instructed to use plain cigarette packs and subsequently asked about their feelings towards them confirmed findings that plain packaging increased negative perceptions and feelings about the pack and about smoking. Plain packs also increased behaviours such as hiding or covering the pack, smoking less around others, going without cigarettes and increased thinking about quitting. Almost half of the participants reported that plain packs had either increased the above behaviours or reduced consumption.
Advertisement companies and consultants for the tobacco industry have expressed concerns that plain cigarette packaging may establish a precedent for application in other industries. In 2012, correspondence between Mars, Incorporated and the UK Department of Health conveyed concerns that plain packaging could be extended to the food and beverage industry.
Concern has also been expressed by the tobacco industry that plain packaging would increase the sales of counterfeit cigarettes. According to Roy Ramm, former commander of Specialist Operations at New Scotland Yard and founding member of The Common Sense Alliance, a think tank supported by British American Tobacco, it would be "disastrous if the government, by introducing plain-packaging legislation, [removed] the simplest mechanism for the ordinary consumer to tell whether their cigarettes are counterfeit or not."
Auction experiments have determined that a likely outcome of plain packaging would be to drive down demand of tobacco products. Another study, commissioned by Philip Morris International, has shown that it would shift consumer preferences away from premium towards cheaper brands. Other arguments against plain packaging include its effect on smuggling, its effect on shops and retailers, and its possible illegality. A study published in July 2014 by the British Medical Journal has refuted those claims.
In reporting Philip Morris's legal action against the Australian project, The Times of India noted that plain packaging legislation is being closely watched by other countries and that tobacco firms are worried the Australian plain packaging legislation may set a global precedent.
In July 2012, it was reported that the American lobbying organisation, American Legislative Exchange Council (ALEC), had launched a worldwide campaign against plain packaging of cigarettes. With the backing of tobacco companies and other corporate interests, it is targeting governments that are planning to introduce bans on cigarette branding, including the UK and Australia. Big tobacco was also reported to have provided legal advice and funding to the Ukraine and Honduras Governments to launch a complaint in the World Trade Organization (WTO) on the grounds that the Australian legislation is contrary to a WTO intellectual property agreement. WTO complaints must be made by Governments, not companies.
By May 2013, Cuba, Ukraine, Honduras and the Dominican Republic challenged Australia's rules through the WTO by filing requests for consultations, the first step in challenging Australia’s tobacco-labelling laws at the WTO A request for consultations opens a 60 day negotiation window after which a formal complaint may be filed, which if successful, might lead to heightened tariffs on Australian exports. The packaging of Cuban cigars is notably attractive if permitted.
Under the legislation, companies have had to sell their cigarettes in a logo-free, drab dark brown packaging from 1 December 2012. Government research found that olive green was the least attractive colour, particularly for young people. After concerns were expressed over the naming of the colour by the Australian Olive Association, the name was changed to drab dark brown. With the plain packaging and tax increases the Australian government aims to bring down smoking rates from 16.6 per cent in 2007 to less than 10 per cent by 2018. Statistics published in 2014 showed that the amount of excise and customs duty on cigarettes fell by 3.4 per cent in Australia in 2013 compared to 2012 when plain packaging was introduced. Some commentators referred to data coming from the tobacco industry and claimed that the tobacco sales volume had increased by 59 million sticks (individual cigarettes or their roll-your-own equivalents) during the same period. According to Philip Morris International, 2013 saw a 0.3 per cent increase in tobacco sales compared to 2012. Other commentators however contradicted these claims based on data published by the Australian Bureau of Statistics in March 2014. A study conducted by KPMG for three major cigarette manufacturers had found that illegal trade of drastically cheaper cigarettes had significantly increased, although an article in The British Medical Journal refutes this. After one year of plain cigarette packaging rule implementation, a special supplement to the British Medical Journal described that before plain packaging implementation 20% smokers want to quit, but after implementation 27% smokers want to quit. Plain cigarette packaging makes no prestige anymore and difficult to make high brand appeal and brand image. An analysis of Philip Morris claims that "the data is clear that overall tobacco consumption and smoking prevalence has not gone down" concluded that this "claim is wrong".
Tobacco industry response
In August 2010, Philip Morris International, British American Tobacco and Imperial Tobacco formed the Alliance of Australian Retailers, which commenced a multimillion dollar campaign against plain cigarette packaging. The campaign focused on grassroots advocacy (astroturfing), ostensibly on behalf of small business owners. When the funding source of the campaign was made public, large retailers such as Coles and Woolworths quickly withdrew support for the campaign. The tobacco companies subsequently hired a public relations firm to oversee the campaign.
In May 2011, British American Tobacco launched a media campaign suggesting that illicit trade and crime syndicates would benefit from plain packaging. BATA CEO David Crow threatened to lower cigarette prices in order to compete, which he claimed could result in higher smoking amongst young people. Mr Crow later commented he would tell his own children not to smoke cigarettes, because they are unhealthy.
The BATA campaign is largely based on a report from Deloitte. Several of the claims contained in the report related to border protection, and have since been publicly refuted by customs officials, and the report itself indicated that it had relied extensively on unaudited figures supplied by the tobacco industry itself.
In June 2011, Philip Morris International announced it was using the provisions in a Hong Kong/Australia treaty to demand compensation for Australia's plain packaging anti-smoking legislation. As a US-based company, Philip Morris could not sue under the US-Australia Free Trade Agreement. The company rearranged its assets to become a Hong Kong investor in order to use the investor-state dispute settlement provisions in the Australia-Hong Kong Bilateral Investment treaty (BIT). In response, Health Minister Nicola Roxon stated that she believed the government was "on very strong ground" legally, and that the government was willing to defend the measures. Dr Patricia Ranald, Convener of the Australian Fair Trade and Investment Network said that big tobacco and other global corporations are lobbying hard to include the right of foreign investors to sue governments in the current negotiations for a Trans-Pacific Partnership Agreement (TPPA).
In November 2011, British American Tobacco announced that it would challenge the laws in the High Court as soon as they gained royal assent. In August 2012, the High Court ruled in favour of the Australian government. Immediately following the passage of legislation on 21 November 2011, Philip Morris announced it had served a notice of arbitration under Australia's Bilateral Investment Treaty with Hong Kong, seeking the suspension on the plain packaging laws and compensation for the loss of trademarks. Allens Arthur Robinson represented Philip Morris. The case is expected to be heard in February 2015. The continuance of trade and investment proceedings on the issue has been described as an affront to the rule of law in Australia.
The World Health Organization applauded Australia’s law on plain packaging noting that “the legislation sets a new global standard for the control of a product that accounts for nearly 6 million deaths each year”.
The Cancer Council of Australia hailed the passing of the legislation, stating, “Documents obtained from the tobacco industry show how much the tobacco companies rely on pack design to attract new smokers....You only have to look at how desperate the tobacco companies are to stop plain packaging, for confirmation that pack design is seen as critical to sales." The World Health Organization's director for the Western Pacific also congratulated Australia and stated that all countries and areas in the Western Pacific should follow Australia's good example.
Speaking on Radio Australia, Don Rothwell, professor of international law at the Australian National University, noted that Philip Morris was pursuing multiple legal avenues. The Notice of Arbitration under the bilateral investment treaty between Hong Kong and Australia has a 90-day cooling off period after which the case would most likely be sent to the International Centre for Settlement of Investment Disputes in Washington. He stated that Philip Morris was most likely aiming for the Australian Government to back down, or failing that, to sue for compensation. He said the questions to decide are whether the legislation means that Australia would acquire property by the imposition of these rules and if this legislation is a legitimate public-health measure.
Professor Rothwell noted "...the growing recognition of the legitimacy of public health measures of this type." Professor Rothwell estimated that the legal cases, including any case before the High Court, would take up to a year to decide. However, in the United States, Judge Richard J. Leon ruled that graphic health warning labels "clearly display the government’s opinion on smoking" which he said "cannot constitutionally be required to appear on the merchandise of private companies." He ruled that these warnings would unfairly hurt their sales, that the warnings were crafted to provoke an emotional response calculated to quit smoking or never to start smoking. This, the judge ruled, was "an objective wholly apart from disseminating purely factual and uncontroversial information.” This finding may be appealed.
The Associated Press noted that Philip Morris took "less than an hour" to launch legal action against the Australian legislation. It also stated that Australian legislation followed the lead of Uruguay which requires that 80 per cent of cigarette packages is devoted to warnings and Brazil, where cigarette packages display "graphic images" of dead fetuses, haemorrhaging brains and gangrenous feet.
Gavin Allen of the Daily Mail newspaper reported that the Philip Morris lawsuit could cost the Australian government "billions". He also noted that the Australian law is being closely watched by other governments in Europe, Canada and New Zealand. In 2005, the World Health Organization urged countries to consider plain packaging, and noted that Bhutan had banned the sale of tobacco earlier in 2011.
New Zealand Associate Health Minister Tariana Turia congratulated the Australian health minister, noted that tobacco labelling rules have long been harmonised between Australia and New Zealand, and looked forward to New Zealand following suit.
In April 2011, Minister Roxon released an exposure draft of plain packaging legislation with an expected start date of 1 July 2012. Australian newspapers reported that the legislation was likely to pass despite concerns from the Opposition. It was suggested the Opposition resistance to the legislation was due to their continuing acceptance of funding donations from tobacco companies.
Minister Roxon introduced the plain packaging bill to Parliament on 6 July 2011, and it passed through the Lower House on 24 August 2011. The legislation passed the Upper House on 10 November 2011 with the amended start date of 1 December 2012. Due to the changed start date the legislation returned to the Lower House before being given royal assent. Legislation finally passed on 21 November 2011.
As of August 2012, Canada is believed to be considering plain packaging.
In 2010 the European Commission launched a public consultation on a proposal to revise Directive 2001/37/EC which covers health warnings, limits on toxic constituents, etc., for tobacco products. The consultation included a proposal to require plain packaging. The Commission is now deliberating on the response to the consultation and is expected to make recommendations in late 2012. Although Commissioner Dalli has rejected plain packaging as an option, the European Union included in its proposal for a new Tobacco Products Directive the option for the Member States to introduce plain packaging. Legal scholars consider plain packaging to be consistent with primary European law and German law.
As of August 2012 Norway is believed to be considering plain packaging.
In December 2010, a UMP member of the French parliament tabled a member's Bill aimed at creating plain packaging. However the bill did not pass despite ongoing support from health associations. As in other countries there was fierce protest from the tobacco industry and retailers associations. The health minister also seemed luke-warm in his support, preferring to see the effect of newly introduced health warnings.
However, the new Socialist government health minister, Marisol Touraine, said she would fight especially at the European level for "neutral packaging". Like in Australia, the tobacco industry countered that generic packaging would be easy to counterfeit, which would increase illegal cigarette sales. The EU directive eventually did not contain explicit measures regarding plain packaging; nevertheless, the French government announced the introduction of a bill containing provisions for generic cigarette packaging on September 25, 2014. On April 3, 2015, the National Assembly approved an amendment to a bill on health issues that establishes plain cigarette packaging as of May 2016. The bill still has to be examined and confirmed by the second chamber of the French Parliament, the Senate.
As of August 2012 India is believed to be considering plain packaging. BJD MP of Orissa, Baijayant Jay Panda, has submitted in the Lok Sabha a private members bill seeking an amendment to the anti-tobacco law aimed at increasing the size of health warning on tobacco product packets. The bill seeks amendment to the original act from 2003 to stipulate for plain packaging of cigarette and tobacco products in the country and increase the size of health warning and the accompanying graphic on cigarettes packets.
In May 2013, Ireland announced plans to become the second country in the world to introduce plain-pack cigarettes. In June 2014 the Irish government said it would legislate to implement plain packaging. Details of the bill known as the Public Health (Standardised Packaging of Tobacco) Bill 2014 were published on 10 June 2014. "There is a wealth of international evidence on the effects of tobacco packaging in general and on perceptions and reactions to standardised packaging which support the introduction of this measure," Ireland's Health Minister James Reilly said when releasing details of the bill. The bill was signed by president Michael D. Higgins on 10 March 2015. From May 2016 packaging manufactured for the Irish market is to be plain and the sale of plain packs is to be compulsory from May 2017.
The New Zealand government is actively considering plain packaging laws but it may prove to be a barrier in negotiating a free trade agreement with the United States. In April 2012 Cabinet approved plain packaging in principle, a move that tobacco companies said they would strenuously oppose. The government launched a three-month public consultation on plain pack in July 2012 and attracted over 20,000 submissions (including overseas) from public health groups and also the tobacco industry. Associate Health Minister Tariana Turia announced the approval of plain packaging of tobacco products in alignment with Australia, while awaiting for the result of the legal challenges faced by the Australian Government.
In September 2011, Bloomberg reported that the Turkish government was working on plain packaging regulations. An Istanbul-based newspaper, Milliyet, reported that under the proposal all branding elements would disappear and cigarettes would come in "numbered black boxes" excluding any imagery other than health warnings.
In March 2011, the Coalition Government committed itself to holding a public consultation on tobacco packaging. This was due to take place in spring 2012. In November 2013, the British Government announced an independent review of cigarette packaging in England, amid calls for action to discourage young smokers. Ms. Ellison rejected Labour suggestions the rethink had been prompted by fears of defeat in the Lords, saying: "It's a year this weekend since the legislation was introduced in Australia. It's the right time to ask people to look at this."
The "Plain Packs Protect" campaign by an alliance of health organisations sets out the case for tobacco plain packaging in the UK, as does Cancer Research UK's "The Answer Is Plain" campaign, which was launched soon after the government consultation was announced. Opposing this is the smokers' rights group FOREST, funded by the tobacco industry, which has launched a counter-campaign titled "Hands Off Our Packs". In August 2014 Philip Morris International foreshadowed legal action against the UK Government if it introduced plain packaging. In a submission to the government, Philip Morris International said it would seek compensation running into "billions of pounds," if the proposed legislation went ahead.
The Children and Families Act 2014 included a provision for implementing plain cigarette packaging, which would be subject to parliamentary approval. In March 2015, the House of Commons voted 367-113 in favour of plain cigarette packaging in England. This will come to force in May 2016.
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All four nations argue that provisions of a 2011 Australian law, the Tobacco Plain Packaging Act, have created “technical barriers” to trade and violate intellectual property rights.
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Campaigns for plain packaging
- Plain Packs Protect – plain packaging campaign in the UK
- Plain Packaging, Smokefree Action Coalition, UK
- The Answer is Plain, Cancer Research UK
- Plain packaging materials advocated by non-government tobacco control organisations, hosted by Cancer Council Australia
- Plain packs Aotearoa (New Zealand) – plain packaging campaign in New Zealand
- Article with links to graphic health warnings
- Allyn Taylor, Regulatory Chill and Challenges to Tobacco Packaging Laws, Jurist Forum, December 7, 2011