Australia wins WTO case on tobacco plain packaging

30 June 2018:

The World Trade Organization handed Australia a historic win upholding Australia’s plain packaging law as being consistent with international trade and intellectual property laws. See (WTO) decision After 5 long years of defending its right to use plain packaging to protect its citizens from misleading messages from the tobacco industry, this victory is important for public health.

Claiming violations of WTO agreements and reportedly with support from transnational tobacco companies, Ukraine, Cuba, Dominican Republic, Honduras and Indonesia had filed cases to dispute Australia’s pioneering law that requires tobacco products to be packaged in monotonous greenish-brown packets with large pictorial health warnings and brand names printed in standardized fonts. Ukraine later withdrew its complaint.

Following Australia’s lead, France, Hungary, Ireland, New Zealand, Norway, Slovenia and the United Kingdom have already introduced plain packaging laws, and at least 16 other jurisdictions are formally considering plain packaging. Prior to the WTO ruling, legal challenges by tobacco companies in Australia, France, Norway, the UK, and Ireland had also been dismissed.

Australia’s victory is an important precedent especially for low- and middle-income countries in the ASEAN that are planning to implement plain packaging. Evidence (see herehere) shows that plain packaging works to reduce tobacco use by diminishing the attractiveness of tobacco products and eliminating the use of tobacco packaging as a form of advertising and promotion. Currently,all ten ASEAN countries have pictorial health warnings (PHWs) on tobacco products. Plain packaging is the next logical step in protecting public health.  

Singapore and Thailand are in advanced stages of preparing their plain packaging legislation. The Thai government has previously been sued by Philip Morris for introducing 85% pictorial warning on packs and as a result implementation of this health measure was delayed by one year.

When Singapore conducted the public consultation process between December 2015 to March 2016, the tobacco industry’s allies submitted comments claiming Singapore’s plan will violate the WTO. For example the International Trademark Association (INTA) claimed plain packaging is inconsistent with the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Paris Convention for the Protection of Industrial Property.

Malaysia had announced plans to develop plain packaging for tobacco in 2016 but succumbed to pressure from the tobacco industry’s representatives and has stalled its preparation. The ASEAN Intellectual Property Association (AIPA) for example issued statements and letters to the press discouraging the Health Ministry’s plans for plain packaging claiming it violates WTO rules. See here and here. While the AIPA is an NGO, its President (2016) was from the law firm representing Japan Tobacco International and was responsible for the intellectual property of its brands in Malaysia.

The tobacco industry uses the courts and trade challenges, such as the WTO case, as an intimidation and delay tactic. Defending such cases are expensive and low and middle-income countries don’t have resources to fight these protracted cases which can run into several years. Besides the WTO case, Australia also faced challenges in its high court and a bilateral trade agreement but has successfully defended the plain packaging legislation.

Australia’s WTO win is crucial. According to WHO spokesman, Tarik Jasarevic: “Tobacco plain packaging is an evidence-based measure that WHO recommends as part of a comprehensive approach to tobacco control.” Parties to the WHO FCTC adopted plain packaging as a tobacco control measure in Article 11 Guidelines.