Plain Packaging in a Broader Regulatory Framework: Preventing False Claims and Investor–State Lobbying

Abstract

The Australian government introduced legislation for plain packaging of cigarettes in July 2011. This immediately provoked a strong counter-reaction from the multinational tobacco industry, particularly Philip Morris International. Two major areas in which the tobacco industry targeted the legislation concerned advertising claims that its trade marks did not unduly promote smoking (for instance an advertising campaign claiming that only a 'Nanny State' would deprive people of freedom of choice) and use of investor state provisions to seek damages against the Australian government. This chapter explores the hypothesis that those initiating Australian plain packaging legislation may not have learnt important lessons from related proposals in other jurisdictions. Amongst those lessons and emphasized here, is the need to implement plain packaging legislation within a broader regulatory framework. It is argued that such a framework should include a mechanism for uncovering and claiming damages against tobacco industry false claims, as well as restrictions upon use of investor state dispute resolution mechanisms in trade agreements. It sets out some proposals that might be incorporated in subsequent amendments of the Australian anti-smoking legislative scheme to effectively aid the plain-packaging requirements from achieving their primary goal, which is the substantial reduction of cigarette smoking in Australia.