Mark Davison on Plain Packaging at ACIPA IP Seminar at Griffith

Mark Davison, as part of the ACIPA IP seminar series considers the normative and legal arguments against regulations which require the plain packaging of cigarettes.

Argument 1: the liberty of consenting adults

The tobacco industry has argued that plain packaging is an infringement on the liberty of consenting adults who choose to smoke. Davison notes, however, that the tobacco industry is reliant on people who are not consenting adults:

88% of those who smoke as adults started as children. The entire industry is dependent on the addiction of children.

Davison argues that there is therefore a strong argument to target tobacco because of its addictiveness: “the tobacco industry gets its customers when they are children and keeps those customers through the physiological addiction of nicotine.” Plain packaging is therefore not directed at adults – it is designed to reduce the number of children who take up smoking.

Argument 2: the slippery slope.

The tobacco industry has argued that tobacco might be bad, but so are many things; where does regulation end? Davison argues that tobacco occupies a special position because of the nature of the harm it producers – there is no such thing as responsible smoking. Davison argues that there is therefore only one regulatory response to tobacco: to advocate for total abstinence.

Three legal arguments

  1. Constitutional challenge: Tobacco industry lost because there are no constitutional limits on the regulation of labeling for any products in Australia.

  2. WTO challenges: not particularly well advanced at this stage, but Davison predicts that the Australian Government will prevail. Even in a worse case scenario, the Australian government only needs to show that the regulation is necessary for public health (Article 8), and Australia has the ability to define its own public health objective – in this case, Australia’s objective of very low smoking rates is a legitimate end. Australia then only needs to show credible evidence that the measures are likely to make a material contribution to the legitimate objective, which Davison believes is available. Davison notes that it appears obvious that trademarks play a role not only in differentiating products, but in promoting tobacco products.

  3. Bilateral treaty between Australian and HK: Philip Morris Asia, in some confidential claims, alleges that the plain packaging measures are a prohibited expropriation of their rights. Davison notes that Philip Morris Asia only acquired Australian tobacco interests ten months after plain packaging was announced, knowing full well that the Australia was going to introduce plain packaging. It therefore could not have a legitimate expectation, which could prove fatal to its claim.