Plain packaging celebrates its third birthday as France green-lights brand-free tobacco packs 01 Dec 15
Plain packaging is officially three years old today, and last week France took a significant step towards becoming the latest country to introduce legislation for the presentation of tobacco products. However, as the spread of plain packaging continues, pro-IP voices are getting lost in the mix, with the narrative framed as boiling down to ‘pro-health interests v big tobacco’.
Australia’s Tobacco Plain Packaging Act 2011 came into force on December 1 2012, making it the first country to prohibit the use of figurative trademarks on tobacco product packaging. The battle over that legislation is still rolling on, with the World Trade Organisation yet to rule on challenges that have been filed against the regime. However, over the past 36 months, other countries have introduced similar legislation. Last week we reported on the Canadian government’s announcement that it intends to introduce plain packaging for tobacco products, leading to the prediction that it could become the fourth country (after Australia, Ireland and the UK) to pass plain packaging legislation. Just 24 hours after we posted that blog, France effectively gave the green light to legislation that should see it introduce new packaging requirements from next May.
According to reports, the vote in the French National Assembly was a close one (56 votes to 54), but means that the legislation now passes to the Senate for approval, before a final reading at the National Assembly. Therefore, contrary to a number of media reports, the legislation is not yet in place, but passage is likely a formality. Reacting to the vote, the Droits des Non Fumeurs welcomed the move, and criticised the intense lobbying against the legislation by tobacco multinationals.
The latter comment cuts to the heart of the problem with respect to the debate over plain packaging – all too often, those that argue against such legislation are characterised as pandering to the interests of big tobacco. Of course, lobbying by the latter exists and rightly so, as tobacco companies – like any commercial organisation – have the right to fight for their interests. Similarly, the ‘pro health’ lobby is equally active in its lobbying efforts. However, the debate over plain packaging is stymied by anti-plain packaging arguments being automatically characterised as an outlet for pro-tobacco voices.
Over the past few years, trademark associations have taken a vocal stance against plain packaging, arguing that it is not a ‘tobacco’ issue but a ‘brand’ and ‘legal’ one. In May, for example, the International Trademark Association (INTA) passed a resolution stating that current plain and highly standardised packaging restrictions should be rejected or repealed, pointing to its potential violation of international treaties (such as TRIPS and the Paris Convention), and arguing “that governments should seek less drastic measures that do not violate international and national law”.
There have also been warnings that plain packaging will creep into other sectors, making it an issue that is bigger than one industry. The message from trademark associations has been clear: “It’s tobacco today, it could be sugary drinks, confectionary products, fast food or alcohol next”. At the recent Managing the Trademark Asset Lifecycle event, held in New York, Etienne Sanz de Acedo, CEO of INTA, related an anecdote story from a recent visit with government officials in a particular jurisdiction, in which he was told that INTA should be “pleased” that the country was only looking to implement plain packaging for tobacco products, as they had had serious discussions about extending the regime to toys (one rationale being that the presence of branding encourages children to pressure parents to make a purchase).
Despite this, too often those in other sectors are not alive to the issue or make the decision to not get involved - and in some instances this extends to industry associations. This week, following news of developments in France, World Trademark Review reached out to a couple of international associations (for clarity, not legal/IP organisations) that we thought may have a perspective on plain packaging. Neither wanted to speak on the record. One told us that tobacco producers are not amongst its membership and it is not a lobbyist, so it had no opinion on the issue. Another told us that it didn’t consider the creep of plain packaging as likely, meaning that plain packaging for tobacco products was best addressed by the sector itself.
Tobacco companies are certainly taking up the fight (for example, this week, to mark the third anniversary of the Australian legislation, Japan Tobacco International issued a release arguing that the Department of Health’s decision to delay publication of its post-implementation review is because its own data shows the regime to have been ineffective in reducing smoking rates). However, it is important that the arguments made by trademark associations (and other interested parties on both sides of the debate) are heard and assessed in a dispassionate manner. Right now, though, it appears difficult for that to happen.
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