Tobacco debate: plain packaging anything but plain sailing
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Despite the air-punching of nanny state lobbyist Simon Chapman that the debate over the legality of plain packaging is over, previous rejections of the idea by the Canadian, New Zealand and British governments suggest otherwise. Chapman’s claim that Monash University’s Mark Davison delivered a “consummate demolition job of the specious huff and puff” of the legal and policy arguments against plain packaging is a demonstration of Chapman not being able to clear from his eyes the sunny glare piercing his university ivory tower windows. In university public health departments it may not appear common for different people to have different legal perspectives, especially on such a controversial issue, but I assure Chapman that they are pretty common. That’s why we have courts to resolve them. Both Davison’s and my presentations were nothing more than presentations of legal arguments from different perspectives. Though I’ll concede I was more interested in discussing the issues, than proving a point. But commentators need to be careful about arguing the legal specifics since the Rudd government hasn’t released its plain packaging legislation. At the moment detailed commentary can only relate to the deficient and now defunct plain packaging legislation proposed by Senator Fielding. And, despite how it may appear, there is agreement between the differing legal perspectives. For example, the current packaging and labelling requirements and encumbrances on the display of trademarks are consistent with Australia’s international trademark obligations. And no one is arguing that the World Trade Organisation’s Agreement on the Trade Related Aspects of Intellectual Property Rights (TRIPS) doesn’t provide the owner of a trademark the right to use it. But there is also disagreement. For example there remains an argument that plain packaging may breach Article XX of TRIPS because it unjustifiably encumbers a trademarks capacity to distinguish goods and services from each other. And when you think about that is the precise intention of plain packaging. Also there remains an argument that the public health exception under the principles section (article VIII) of TRIPS doesn’t provide blanket protection because it requires consistency with the aforementioned Article XX, and that broad interpretations of the term “public health” is limited to discussion about medicines. And several individuals and groups are raising these concerns such as the International Trademarks Association. And then there’s the Institute of Patent and Trademark Attorneys who also raise concerns. There are plenty of other examples of the to-ing and fro-ing of different legal interpretations, but no one can say with absolute certainty what the courts will decide. As the government keeps pointing out, Australia would be the first in the world to legislate for plain packaging which, Mr Chapman, inherently brings with it legitimate debate about its legality.
Tim Wilson is director of the IP and Free Trade Unit at the Institute of Public Affairs. |
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11 Comments
Aaaaargh, it’s Groundhog day!! Davison comprehensively demolished these arguments in the video Chapman linked to … yet Wilson keeps recycling them, perhaps hoping no one watched him being pwned in the video.
Davison makes it clear that it will still be possible to distinguish different brands with the plain packaging proposals.
Further, just because the jurisprudence on “public health” was in relation to medicine doesn’t mean the principles can’t apply to other products, although Wilson does unwittingly make the point that tobacco is about as far removed from medicine as you can get.
There may be a “legal argument” on these issues because an Australian Court hasn’t decided on them — it doesn’t mean that both sides of the argument have equal merit, nor that Wilson’s tobacco-producing paymasters have any chance of winning with tired points like those raised in this article.
Good luck with that Court case.
It would be an odd result that a host of unhealthy products are banned or restricted on toxicological grounds, but a lesser law on packaging would be beyond power.
But no less odd than conservatives reaching into international treaties to limit parliamentary sovereignty! ( Some of us remember the principled opposition of Gibbs and others to this, starting with the Tasmanian Dams case.)
A more logical conservative position would be to argue that packaging laws are anti-competitive and might stitch up markets. (That was the US position with anti-tobacco advertising laws). But that’s just a by-product from the main intention of the law. It also rather highlights the fact that, like petrol, there is precious little product differentiation in this already monopolistic market: apart from Camels and a handful of roll your owns, you are basically buying the same standardised chemically enhanced product.
Tim, please, a little credit. I am no ordinary ‘nanny state lobbyist”. Shock jock Steve Price can give you a steer. On 2UE (30/7/08) he deeply wounded me by the epithet “academic, intellectual, self appointed chief wowser of the nanny state”. Academic and intellectual. Ouch!
Anyway, the view from the ivory tower looks pretty good as I and my colleagues survey total advertising bans, no more Winfield Cup, B&H cricket, Marlboro Open, smokefree environments, 92% of households voluntarily banning smoking indoors, massive graphic pack warnings, not much change from $20/pack, the tobacco industry repeatedly ranked below used car salesmen in community surveys on honesty, 168 nations other than basket cases like Somalia and Zimbabwe having ratified the legally binding WHO Framework Convention on Tobacco Control, and the IPA as the loudest voice in town on why it’s all wrong. And, before I forget, the lowest rates of smoking ever recorded in adults and kids, and male lung cancer rates/100,000 last seen in Australia in 1962.
When I look in the mirror I don’t mind what I see. What will your contribution look like in reducing the largest cause of cancer death in the world today?
Wilson omits to mention that he started by arguing that plain packaging would cost the Australian Government squllions because paragraph 51 (xxxi) of the Australian constitution gives the Commonwealth power to acquire property only ‘on just terms’. But that was plainly wrong since the Australian Government isn’t seeking to acquire property in tobacco companies’ trade marks. Again, this is not an issue of different legal perspectives. The Howard Government’s native title amendments had ‘bucketloads of extinguishment’ of native title, with no risk of a constitutional challenge and of course no hope of compensation, on just terms or otherwise.
As a Trade Mark Attorney, I should point out that Tim Wilson’s points are not especially strong. The plain packaging legislation is not going to ban the use of trade marks on cigarette packaging; otherwise consumers would not be unable to identify or ask for their preferred brand in shops. The proposed changes may restrict the use of some special kinds of trade marks, which the cigarette companies own, directed solely to the getup of the packets themselves. These are secondary trade marks, and in industries other than tobacco, are very rare; why tobacco companies have spent so much money on obtaining trade marks for their packet design is something of a mystery.
The issue of Australia’s adherence to the TRIPS Treaty is important. But it is questionable if the changes being proposed would damage this. Other countries have more restrictive conditions and limitations on the use of trade marks. For instance, Saudi Arabia bans all trade marks for alcoholic drinks, and Kuwait bans trade marks for alcoholic drinks and for pork containing goods. Both these countries are signatories to TRIPS despite these much more draconian restrictions.
Tim, was it part of your attempt at a put-down of Simon Chapman that you refer to him as ‘Mr’ Chapman?
According to Sydney University, Simon Chapman is Professor & Director of Research in their School of Public Health. He’s also a Fellow of the University Senate.
Not bad for what you call a nanny-state lobbyist!
Rosemary Stanton
Tim, it really is best to keep quiet after you’ve been put in your place. Having a hissy fit about the whole thing only makes everything worse.
Your links don’t suggest rejection, for instance in the Canadian summary:
This isn’t a rejection, she’s saying it should happen, but the tobacco industry there is fighting just like you are fighting for them. How many contaminated dollars are they paying you, by the way?
Time warp Tim, are you seriously citing a 1997 paper from New Zealand as proof the debate over plain packaging is still alive? Is that really the lazy standard of debate we should expect from the director of a policy think tank?
Catch up to 2010, and New Zealand’s Associate Health Minister, Tariana Turia said only yesterday to Radio NZ that other possible changes to tobacco policy ‘include banning retail displays of tobacco products and selling them in plain packaging’.
@B Youdan: I don’t think we were supposed to actually read his links, they were just there to lend an air of fake authority to the article.
Lightweight indeed!
“Despite the air-punching of nanny state lobbyist Simon Chapman that the debate over the legality of plain packaging is over, previous rejections of the idea by the Canadian, New Zealand and British governments suggest otherwise.”
Follow the links:
1) a 15 year old Canadian govt discussion paper which is NOT a rejection of plain packaging, merely cautions against possible hurdles:
“In June 1994, the Committee issued its report, in which it recommended that “prudence should be exercised” in introducing plain packaging because of constitutional concerns”
2) an Australasian organisation’s (no, Mr. Lightweight, that’s not the NZ govt.) discussion paper.
The AFPHM isn’t the NZ government it’s the Australasian Faculty of Public Health Medicine. This link has almost nothing to say on plain packaging, except to note that “The committee, while impressed with the research on the issue [plain packaging], did not feel that such a change was feasible at this time” - perhaps because of industry puff campaigns?
3) a UK govt response to an e-petition calling for, inter alia, plain packaging on cigarettes, giving no position on plain packaging and only noting that:
“The Ministerial Statement on 9 December indicated that whilst there are no plans to introduce plain packaging as part of the Health Bill, the Department of Health will work to develop the evidence in this area.”
Yes, hyperlinks look good, but this is just meaningless. Crikey, I’m more than happy to read arguments I disagree with (in fact, that constitutes most of your output), but this deceitful, low-grade stuff is well below par. The author has deliberately (there is no way anyone could argue this was a ‘mistake’) put meaningless, irrelevant links to give the impression there is widespread, credible, governmental, international support for his position, whereas there’s nothing of the sort.
Mr. Lightweight is the director of the IP and Free Trade Unit at the Institute of Public Affairs. Why don’t you tell us how many people work in this ‘Unit’, or was the name invented to give this liar and spinner a respectable title to peddle these bilious arguments.
Shame!