The Plain Pack Group

Plain Pack Group Meeting 1994

A Coordinated Industry Response to Plain Packaging

In 1993, representatives from eight international tobacco companies set up the Plain Pack Group, also known as the Plain Pack Working Group, to develop a coordinated, worldwide strategy against plain packaging. Their aim was: “To undertake a global review of attacks on the design, style and content of the industry’s trademarks with particular reference to the packaging of the product, requirements for ever‐larger health warnings, and proposals for the restriction of companies’ freedoms to utilise their valuable trademarks and pack designs. To identify opportunities for action, and to undertake such actions as necessary to defend and protect both the integrity of pack designs and the rights and freedoms of the companies to utilise their trademarks and pack designs as they see fit.” ¹In their November 1993 meeting the Plain Pack Group agreed three main actions: ²

• to develop a bank of industry-friendly experts
• to seek the support of intellectual property associations
• to develop alliances with other multinational industries.

To achieve its aims the Group agreed that it would contact the following organisations:

• World Intellectual Property Organization (WIPO)
• Organisation for Economic Co-operation and Development (OECD)
• International Chamber of Commerce (ICC)
• Union des Industries de la Communauté Européenne (UNICE) – known as Businesseurope since 2007
• Association des Industries de Marque (AIM)/European Brands Association
• ITMLA
• Association Internationale pour le Protection de la Proprieté Intellectuelle (AIPPI)/International Association for the Protection of Intellectual Property

They then identified “potential allies,” including:

• Pharmaceuticals
• Alcohol
• Cosmetics
• Unilever
• Colgate
• Pepsi
• Coke ³

The minutes of the meeting also revealed the Group had stipulated that contact should be made with MP Ian Mills, who was “known to have an interest in trademarks and intellectual property.”³

Key Communication Points

By March 1994, the industry had identified key points to be included in a communications strategy:

• Already a high awareness of the controversy surrounding tobacco smoking.
• Despite the controversy, millions of people around the world choose to smoke.
• Trademarks and brands are an essential element of the orderly market for cigarettes and without them consumers would be confused and deceived:
• consumers are severely disadvantaged with a move to plain or “generic” packaging
• the use of a brand or trade mark means the manufacturer takes responsibility for the product’s quality and integrity
• unless identifiable, consumers would be unable to take redress regarding quality, etc. of the product (brand)
• plain packaging is far easier to copy or counterfeit, leaving the way open for massive market distortion
• proposal for plain or “generic” packs assumes all are cigarettes are the same – they are not – one way of differentiating is through the packaging
• trademarks and brands are the main assets of cigarette manufactures – their removal would result in significant devaluation in the value of companies and huge losses for shareholders;
• the orderly market would be destroyed with anyone who wanted to offering product for sale without the responsibilities assumed by major trademark and brand owners
• governments stand to lose the most through non collection of taxes
• protectionist as it would prevent new legitimate market entrants introducing their brands. ⁴

Most of these public relations arguments and tactics are still being used today.

Plain Pack Book with John Luik

The Plain Pack Group funded a book of articles challenging plain packaging, with an interpretation of international law favourable to the industry’s point of view. It was edited by tobacco industry consultant John Luik.⁵

In 1994, Luik was appointed as project manager for the book, assisted by a “small steering group of industry representatives”. Luik’s fee was US$155,000,⁵ although the overall project cost in excess of $250,000.⁶

The book, entitled Plain Packaging and the Marketing of Cigarettes, was published in 1998 by Admap Publications in Oxfordshire, England. It concluded that public health assumptions about the beneficial effects of plain packaging were defective, that plain packaging would cause problems with smuggling and threaten the values of a democratic society. In addition to Luik himself, the contributors were:

• Zalman Amit, Center for Studies in Behavioral Neurobiology, Concordia University, Canada
• Brian R Smith, Center for Studies in Behavioral Neurobiology, Concordia University, Canada
• W Fred Van Raaij, Rotterdam Schools Management, Erasmus University, the Netherlands
• Roderick Power, Department of Psychology, Macquarie University, Australia
• Leslie de Chernatony, Professor of Marketing, Open University Business School, UK
• Claude R Martin, University of Michigan
• Julius Katz, Hills & Company, Washington, DC
• Richard G Dearden, Gowling, Strathy and Hendersen, Ottawa, Ontario, Toronto
• Jamie Cameron, Osgoode Hall Law School, York University, Toronto

Funding scientists and credible researchers is a well-known industry tactic. For more information please visit Influencing Science: Funding Scientists.

Independent of the Industry?

In April 1994 Luik circulated his thinking and rationale behind the book proposal:

The book should aim to be the “plain packs Bible” that is, it should set out in a scholarly, but not needlessly technical way the ENTIRE range of arguments against plain packs. The book should serve three groups of readers.

• First, it should be a resource for the industry and particularly those in the industry and allied groups who need to put the industry’s case in public.
• Second, it should be accessible for civil servants and politicians who will be considering plain packs proposals advanced by the antis.
• Third, it should be sufficiently scholarly to be credible and citable and influence the academic debate about smoking in general, and smoking initiation, risk, advertising and intellectual property in particular.

Luik went on to outline in more detail the process, which showed the tobacco industry had a undue influence but had also sought to distance itself from that influence:

The editor would act to commission, on the advice of the committee, the chapters, edit each chapter, design the book layout, arrange for a cover, ensure that schedules were maintained, proof-read the final text and be responsible for printing. It would need to be determined whether the book would be published by an independent think-tank/public policy centre, with acknowledged industry support, or be published directly by the industry. The former is probably preferable for a variety of reasons. ⁷

Other documentary evidence shows that:

• There is evidence that chapter headings were approved by at least three tobacco companies, British American Tobacco, Philip Morris and Imperial Tobacco. ⁸⁹
• In 1995 minutes of a Plain Pack Group meeting reveal the tensions about the tobacco industry funding and the desire for the book to be seen as independent from the industry. The minutes note that “Information relating to funding is STRICTLY CONFIDENTIAL,” but that “An attribution statement recognising ‘non-interfering’ international industry support for the project was agreed”. ¹⁰¹¹
• The draft was also reviewed by tobacco lawyers, Shook, Hardy and Bacon (SHB). ¹² Documents from the tobacco archives show a breakdown by chapter over which chapters are being reviewed by SHB. Other chapters are “awaiting discussion” with Luik and SV. SV is identified in industry documents as Sunaina Virendra, from Philip Morris. ⁹¹¹

Trademark Claims

The book edited by Luik repeated claims about intellectual property rights that the industry already knew to be incorrect. A report by Physicians for Smoke Free Canada notes that the book:

included a chapter on plain packaging and international trade treaties. The authors were former US trade negotiator Julius Katz and Canadian lawyer Richard G Dearden. Four years after WIPO had informed them that their analysis was incorrect, these authors repeated their disinformation about the impact of obligations under the Paris Convention to plain packaging.¹³

In April 1994, when the Canadian Government was proposing plain packaging, Luik was hired by the Canadian Tobacco Manufacturers’ Council to “look at the possibility of assembling a group of academics who would argue against plain packaging”. ¹⁴

Legal Opinions

Industry efforts to seek protection under intellectual property right laws bore little fruit. A presentation from BAT in May 1994 noted that “current conventions and treaties offer little protection”. It added that the industry had found “little joy” in GATT or TRIPS. ¹⁵

The companies commissioned several legal opinions on the protection that trade law might offer them, which offered little succour. The Physicians for Smoke Free Canada report summarises the advice they received: ¹⁶

• August 1992: Australian tobacco companies sought and received advice from their own lawyers that they had no basis for legal challenge under the Paris Convention. ¹⁷
• July 1993: Australian companies told that an alternative view they had commissioned from a trade professor was characterised by the U.K. Department of Trade and Industry as incorrect and that to think otherwise would require several large imaginative leaps. ¹⁸
• April 1994: John Clutterbuck of Rothmans, in a background paper prepared for his colleagues in other tobacco companies, observed that “there appears to be no direct redress available to companies under NAFTA as regards product labelling”. In the same paper, he candidly concluded: “The international trade argument by itself will not however be sufficient to ward off the threat of plain packs”. ¹⁹

On behalf of the Plain Packs Group, BAT solicitor David Latham wrote to Ludwig Baeumer at the World Intellectual Property Organization, a specialised body of the United Nations “dedicated to developing a balanced and accessible international intellectual property system” ²⁰, asking for advice about the possible use of the Paris Convention on trademark law.

“The Paris Convention does not contain any obligation to the effect that the use of a registered trademark must be permitted,” Baeumer replied. “If a national law does not exclude trademarks for certain kinds of products from registration, but only limits the use of such trademarks, this would not constitute a violation of the Paris Convention.” ²¹ Latham noted: “Certainly his letter does not take us further.”

Despite clear advice that intellectual property law offered the industry no protection against plain packaging legislation, the industry continued to use these arguments. The Physicians for Smoke Free Canada report notes: “BAT continued to instruct its public relations officials to counter proposals for plain packaging with arguments that it would violate intellectual property laws, and when it launched an industry public relations publication, The Tobacco File, in Canada in 1995, it continued to position plain packaging as contrary to intellectual property laws. In July of 1995, Rothmans, Benson and Hedges president Joe Heffernan told shareholders that plain packaging was against Canada’s “International Treaty obligations to protect intellectual property including trade marks”. ²²

The intellectual property argument is still being used in countries considering plain packaging. Following the ruling that plain packaging would be introduced in Australia, the tobacco industry took the Australian government to court arguing that plain packaging amounted to an appropriation of their trademarks. On 15 August 2012, the High Court in Australia ruled that plain packaging was constitutionally valid. ²³

Australia has also been challenged internationally by the Ukraine, the Dominican Republic and Honduras under the auspices of the World Trade Organization. Once again, despite the advice in the 1990s that such claims are not necessarily valid, these countries argue that Australia is breaching intellectual property rules as stated in TRIPS and TBT Agreements. ²⁴

Andrew Mitchell, an international law expert at Melbourne University told the Australian publication Lawyers Weekly that the WTO claims are unlikely to be successful. ²⁵ Mitchell argued that “Tobacco companies still have the right to use their trademark and are simply prohibited from exercising a positive right to use it on tobacco products” and therefore IP rules are not breached.

Relevant Links

Physicians for Smoke Free Canada, Packaging Phoney Intellectual Property Claims, June 2009, accessed 1 June 2011.