‘Repackaging’ Plain Packaging in Europe: Strategic Litigation and Public Interest Considerations

Abstract

States are increasingly using plain packaging (PP) as a means for reducing smoking levels and protecting public health. The trend started with Uruguay 1 in 2009, followed by Australia in 2011, 2 and is now spreading across Europe. After the EU adopted the second tobacco product Directive (TDP2) 3 tightening up its tobacco packaging regulations and allowing EU Member States to adopt measures regarding the standardization of tobacco packages, two Member States—the UK and Ireland 4 —have already adopted legislation to that effect. A number of other EU members are in the process of drafting and implementing PP too. 5 Each time, the relevant State has almost instantly been faced with litigation by tobacco companies, which claim that PP restricts their ability to use their trademarks on tobacco packages and to distinguish themselves from competitors. A few of the litigation strategies adopted by tobacco companies have focused on intellectual property (IP) law proper, either through the initiation of proceedings at the domestic level 6 or by lobbying States to bring proceedings before the WTO Dispute Settlement Body (DSB) for possible breaches of, inter alia, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). 7