Plain packaging of tobacco products: a further look here and there
Wednesday 1st October 2014
In our last newsletter we discussed plain packaging of tobacco products in New Zealand and Australia. This month, we take a look at the situation in Ireland and the United Kingdom.
The Irish have not legislated for plain packaging. However, the Public Health (Standardised Packaging of Tobacco) Bill 2014 prohibits “the use of any logos on packaging or on cigarettes themselves. Graphic warnings would be mandatory on all packaging, and terms such as “low tar” would be forbidden”.
The Bill was put forth by Health Minister James Reilly. Reilly hoped that it would come into force in 2016 but delays are expected as a result of his recent removal from Cabinet.
Nevertheless, the possibility of Ireland becoming the first member of the European Union to legislate for plain packaging has sparked global commentary and concern. Tobacco companies are demanding that the government pay compensation if the reforms are enforced. Given the value of branded packaging, this could amount to billions. They have expressed a clear intention to take action before the European Union and the World Trade Organisation (“WTO”).
The Bill was open for submissions until 18 September. The Department of Health received complaints from eight countries, who argued that the Bill places restrictions on the free movement of goods, as provided for under European Union law. The next step is for the Department of Health to report on these objections to the European Commission. The Irish government cannot take further action until the Commission gives the all go.
Under the Children and Families Act 2014, the Minister of Health can implement regulations for plain packaging of tobacco products.
There are arguments that exercising this power breaches the UK’s obligations under various international agreements, such as The Agreement on Trade-Related Aspects of Intellectual Property Rights. Tobacco company Philip Morris has submitted that plain packaging “is a euphemism for government-mandated destruction of property. It is unlawful, disproportionate, and at odds with the most basic requirements of the rule of law.”
Australia is the only country to legislate for plain packaging and the legality of this is currently being reviewed by the WTO. The UK is waiting for the decision, which is expected in the next several months. If Australia comes up short, the government will likely rethink whether the introduction of legislation in the UK is such a good idea.
Added to the mix is evidence that removing brands contributes to contraband and illicit products. There are also questions as to whether standarised packaging even works to decrease the consumption of tobacco products. These topics will be explored in upcoming articles, so keep an eye out.
 Arthur Beesley “Reilly to seek Cabinet approval for plain tobacco packaging” The Irish Times (online ed, Ireland, 10 June 2014).
 Philip Morris Limited “Response to the Consultation on Standardised Packaging” 7 August 2014.