Tim Lince

The government of the Dominican Republic invited a small group of journalists to the country last week in an attempt to highlight what it feels are the as-yet ignored negative effects of plain packaging legislation. While officials expressed confidence that the World Trade Organisation (WTO) will rule against Australia’s plain packaging regime, the government has clearly decided that public opinion matters as much as legal.

The Dominican Republic is one of four countries (the others being Cuba, Honduras and Indonesia) to bring a complaint before the WTO against Australia’s plain packaging regime. The ruling is expected, according to officials close to the case, in May or June this year (though there has been a history of delays). According to a Dominican government pamphlet, the country is pursuing the case because it “believes Australia violated core WTO rules that protect IP and trademarks, and chose to take a stand”. Of course, there are also reasons of self-interest, namely that Dominican tobacco industry exports accounted for approximately $780 million in 2015, representing a sizeable chunk of the country’s total exports. The leaflet concludes: “Australia could have acted responsibly [and] upheld the very trade commitments it demands others abide by, while still accomplishing an important public health goal. Unfortunately, Australia instead chose to disparage our tobacco sector. Given that choice, the Dominican Republic made a choice of its own: we chose to defend our growers, our producers, our industry, our heritage and our future.”

Part of that defence was to invite journalists to the country to learn more about its arguments; the effect of plain packaging on the country’s heritage a factor that officials were most keen to emphasise (it is worth pointing out at this stage that, while World Trademark Review accepted the government’s invitation to gain a deeper insight into the country’s industry, we were under no obligation to report – positively or otherwise – on what we were told).

Katrina Naut, the Dominican government’s director of foreign trade, noted that the Dominican Republic does not cultivate tobacco for “economic reasons” but because of “long-held traditions”, adding: “Tobacco is part of the historical fabric of our country – fathers have passed down their tobacco business to their son for generations.” The Dominican Republic’s permanent ambassador before the WTO, Luis Manuel Piantini, echoed this message. Officials state that around 120,000 jobs directly linked to tobacco in the Dominican Republic, and upwards of 400,000 related jobs are dependent on the industry (out of a total population of 10.4 million). Piantini stated: “We call tobacco the ‘democratic crop’ because of the amount of families on our small island that are reliant on it. Tobacco represents our heritage, our history and our traditions, and that is why we are so passionate about fighting this case.”

Arguments centred on ‘traditions’ will struggle when compared to claims that plain packaging will help to reduce smoking rates and combat the ill effects of tobacco. However, Naut hit back at accusations that the country is ignoring health concerns and questioned the assumption that plain packaging will have a positive effect. She counters that Australia “wanted to create confusion” in its arguments to the WTO “by framing the issue as a wholly public health issue” without reliable evidence that plain packaging works. She stated: “It is important to remember that the Dominican Republic is not against taking health policy measures on tobacco products. We have taken preventative steps, such as implementing high tax on tobacco products, making prohibitions on certain advertising and restricting the use of tobacco in certain public spaces. Australia, meanwhile, has taken a step too far by implementing a restrictive measure that has questionable effects on public health. Why restrict brands and trademarks if there is a debateable health impact? Ultimately, a restriction on tobacco packaging will have far-reaching IP implications that cannot be ignored.”

From the outside, the dispute between the Dominican Republic and Australia before the WTO is a ‘David versus Goliath’ battle. Australia also appears to have legal form, following its win in December against Philip Morris in a case that that attempted to overturn plain packaging laws using clauses in a bilateral trade agreement with Hong Kong. Nonetheless, all the Dominican officials we spoke to remain confident of prevailing at the WTO. That said, there are worries that the organisation has no legal basis to enforce such a ruling, with Piantini noting: “It has been a concern for us that we are a small country fighting a big country that will not comply with the ruling if they lose”.

However, if the WTO rules in favour of Australia, Naut reveals that the country will “probably take no further action” against other countries that have enacted similar plain packaging regimes (such as the UK and Ireland). She stressed, though, that: “Even if we lose, we will not stop defending IP rights.”

The government has clearly decided that arguments in legal forums and the corridors of power are potentially not enough, and that media engagement must be part of its defence. However, the legal system remains the key battleground and it seems that the WTO decision is finally on the horizon.

Comments

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RE: Dominican Republic goes on anti-plain packaging PR offensive; aims to tell

Perhaps the DR should consider promoting retaliatory action against whatever might be a popular export from Australia. Perhaps kangaroo meat should only be sold in "plain packaging" covered with gory pictures of kangaroo entrails and bloody pictures of various human body organs adversely affected by eating meat.

Michael J. McFadden

Author of "TobakkoNacht -- The Antismoking Endgame"

Philadelphia, USA

Michael McFadden, on 22 Mar 2016 @ 22:06

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