Plain Packaging

Australia was the first country in the world to introduce plain packaging for tobacco products. From 1 December 2012 all tobacco companies were prohibited by law to use brand logos, colours or promotional text on their tobacco packaging. Branding is restricted to the name of the manufacturer and the name of the product displayed in a standard size and typeface and all packs must be produced in the same colour – referred to as ‘drab olive-green’. All packets include graphic health warning images both on the front and back. ^{1 2}

Following a legal challenge against the Australian legislation by Imperial Tobacco Australia, British American Tobacco Australia and Philip Morris Limited, a High Court ruling declared on 15 August 2012 that plain packaging in Australia was not in breach of the Australian constitution as it did not represent an appropriation of company trademarks by the government. The government were not using the brands for their own profit they were prohibiting their use by the tobacco companies. For further information on industry Intellectual Property claims, see Australia: Trademark Claims.

In 2018 and 2020, the World Trade Organization (WTO) dismissed complaints filed against Australia’s plain packaging by Honduras, Indonesia, the Dominican Republic and Cuba.³. It was reported that those countries received technical and financial support from BAT and PMI to bring their complaints.⁴ JTI had a number of consultancies commissioned that all came with reports warning against graphic health warnings and plain packaging. Find out more about this tactic on the JTI page

Background

Proposals to introduce plain packaging date back to the mid-1980s. Since this time, such proposals have been considered by governments across the world.

In the early 1990s, the tobacco industry formulated a coordinated international strategy to counter proposed legislation on plain packaging and health warnings. Central to its campaign were claims that these laws would breach companies’ intellectual property rights. Internal industry documents show that the companies’ own legal advice did not support such claims.⁵ (For a fuller account see History of Plain Packaging: Developing the Intellectual Property Argument) Nevertheless, several companies continue to make legal claims as a way of delaying legislation in the first instance and securing amendments post-legislation: “Even when arguments are sometimes not conclusive in themselves, they should be used uniquely to lobby local governments in our favour” (also see: Australia: Trademark claims).

Industry Arguments Against Plain Packaging

The tobacco industry uses similar arguments against plain packaging globally, including:

* illegality of the legislation under international trade and intellectual property treaties⁶

* lack of evidence that the legislation will lead to reduced smoking⁶

* increased counterfeit cigarettes and smuggling, leading to taxpayers missing out on billions in tobacco excise while organised crime gangs make millions.^{6 7}

* cheaper more accessible illegal tobacco will actually increase smoking⁷

* legal cigarette prices will also be reduced as the industry is forced to compete on price rather than brands, also increasing smoking rates even further⁷

* burden of plain packaging on small businesses due to impaired customer service, stock management and lost sales to illegal operators⁶

* it breaches companies’ right to free expression. ⁸

These arguments are discussed in more detail here Industry Arguments Against Plain Packaging.

Many of these arguments are examples of well-rehearsed industry tactics, to read about the public health responses to these arguments see Countering Industry Arguments against Plain Packaging.

Implementation of Regulations

As of March 2022 plain (or standardised) packaging regulations were fully implemented in 17 countries. Three other countries passed legislation in 2021 to adopt plain packaging in 2022 for tobacco products: Myanmar, Denmark and Côte d’Ivoire. ⁹¹⁰

Article 11 of the World Health Organization Framework Convention on Tobacco Control (FCTC) relates to the packaging and labelling of tobacco products. Detailed information on parties’ implementation of regulations can be found in the relevant section of the WHO FCTC Implementation database.¹⁰

For information on tobacco regulation more broadly, see the Tobacco Control Laws website, published by the Campaign for Tobacco Free Kids (CTFK).

TobaccoTactics Resources

Key pages in the plain packaging category:

• Plain Packaging in Australia
• Trademark claims
• Imperial Tobacco Australia Pre-empts Legislation
• Plain Packaging in New Zealand
• Plain Packaging in the UK
• Plain Packaging in the EU
• Developing the Intellectual Property Argument
• The Plain Pack Group
• Industry Arguments Against Plain Packaging
• Good Quotes on Plain Packaging
• BAT Funded Lobbying Against Plain Packaging in 2012