New Zealand Law Society - Plain cigarette packaging: we are not alone

Plain cigarette packaging: we are not alone

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New Zealand is joining a handful of other countries in introducing plain packaging for cigarettes. The Smoke-free Environments (Tobacco Standardised Packaging) Amendment Act 2016 received the Royal assent on 14 September 2016 and will come into force within 18 months. We take a look at the thinking behind it, who else is going down this route, and how the tobacco companies are fighting back.

WHO, what and why

Tobacco packaging is a "mobile billboard promoting the consumption of tobacco products", in the World Health Organisation's opinion. "If you strip back the decoration, gloss and misleading elements of tobacco packaging, you are left with little more than a box of deadly addictive products that kills approximately six million people a year and harms the health of many more. Plain packaging helps reveal the grim reality of tobacco products," WHO says.

pic of plain fags 
NZ cigarette packs will have prominent health warnings. 

The health organisation says the goals of plain packaging include:     

  • Reducing the attractiveness of tobacco products
  • Eliminating the effects of tobacco packaging as a form of advertising and promotion
  • Addressing design techniques that may suggest some products are less harmful than others
  • Making health warnings more visible and effective

Australia led the way in plain packaging, introducing legislation back in 2011. France, the United Kingdom and now New Zealand have followed suit, and several other countries are mulling a move.

Under the new legislation cigarettes sold in New Zealand will be packaged in drab green or brown cartons, devoid of company logos and marketing but displaying prominent mandatory health warnings. 

New Zealand's Associate Health Minister Peseta Sam Lotu-liga expects the new packs to make a measurable difference to smoking rates in New Zealand, where around 5000 people die each year from smoking-related illnesses. "The bland packs will maximise the impact of health warnings and cut out any false impression that smoking is cool."

Where there's smoke there's legal fire

Obviously not everyone thinks plain packaging is a great idea, with global tobacco companies throwing their not inconsiderable resources behind legal challenges. Philip Morris International, which makes brands such as Marlboro, says plain packaging "eliminates consumer choice, disrupts market competition and deprives us of our intellectual property".

British American Tobacco is reserving its position on whether it will initiate a legal challenge against New Zealand's new legislation. The company's New Zealand head of legal and external affairs, Saul Derber, says plain packaging is "an attack on companies' intellectual property rights" and undermines the principles on which international trade is founded".

As the first country to introduce plain packaging, Australia has been something of a guinea pig in terms of fielding challenges from the tobacco industry.  British American Tobacco and Japan Tobacco challenged the legislation in Australian courts but lost. Philip Morris went down another route, suing the Australian government under the provisions of a Hong Kong Australia investment treaty and lodging a claim with the international tribunal the Permanent Court of Arbitration. Philip Morris wanted Australia to be forced to either rescind the legislation or pay billions in damages. 

The tobacco giant's bid was thrown out after the tribunal found that Philip Morris Asia had bought an Australian subsidiary for the purpose of starting arbitration under the Hong Kong Agreement. 

"The tribunal cannot but conclude that the initiation of this arbitration constitutes an abuse of rights, as the corporate restructuring by which the claimant acquired the Australian subsidiaries occurred at a time when there was a reasonable prospect that the dispute would materialise and as it was carried out for the principal, if not sole, purpose of gaining treaty protection," the judgment found.

Free speech and US packaging

Although tobacco firms have so far been unsuccessful in attempts to force governments to back down on plain packaging, they did manage to shut down attempts to introduce prominent health warnings on US cigarette packaging. When the US Food and Drug Administration (FDA) tried to force tobacco companies to print health warnings and pictures of negative health consequences on cigarette packages, tobacco firms successfully argued that it would unconstitutionally violate their rights to freedom of speech under the First Amendment.

Where in the world?

Australia was the first country in the world to introduce plain packaging legislation in December 2011, fully implementing it in December 2012 - the Tobacco Plain Packaging Act 2011 and the Tobacco Plain Packaging Regulations 2011 . From December 1, 2012 all tobacco products in Australia have been required to be sold in dull, brown packages, with no company logos and the same font for all brands. 

New Zealand: The Smoke-free Environments (Tobacco Standardised Packaging) Amendment Bill was finally passed in September this year, after being originally introduced to Parliament back in 2013 by Dame Tariana Turia. The New Zealand Government wanted to see how legal challenges by big tobacco firms against the Australian legislation played out before committing to new laws here.

European Union: The Tobacco Products Directive came into force on May 20, 2016, and states that EU member countries have the option of implementing plain packaging.

France: Around a 32% of French men and around 26% of French women smoke according to WHO. Nevertheless, French politicians braved the smoking backlash and pushed through plain packaging legislation, which came into force in France on May 20, 2016.

United Kingdom: Plain packaging legislation came into force in the UK on May 20, 2016, despite attempts to block it by Philip Morris International, British American Tobacco and Japan Tobacco International.

Canada: The Canadian government, which estimates around 37,000 Canadians die every year from tobacco-related illnesses, undertook a three-month public consultation on the issue earlier this year. It says introducing plain packaging is a priority.

Ireland: Plans to enact plain packaging legislation in Ireland in May were stymied by political delays –including the amount of time it took to form a new government after the 2016 general election resulted in a hung parliament.