Abstract
In response to complaints by Ukraine, Honduras, the Dominican Republic, Cuba, and Indonesia, the government of Australia has defended the introduction of plain packaging of tobacco products in the World Trade Organization. This article focuses upon the legal defence of Australia before the WTO Panel. A key part of its defence has been the strong empirical evidence for the efficacy of plain packaging of tobacco products as a legitimate health measure designed to combat the global tobacco epidemic. Australia has provided a convincing case that plain packaging of tobacco products is compatible with the TRIPS Agreement 1994, particularly the clauses relating to the aims and objectives of the agreement; the requirements in respect of trade mark law; and the parallel measures in relation to access to essential medicines. Australia has also defended the consistency of plain packaging of tobacco products with the TBT Agreement 1994. Moreover, Australia has provided clear reasons for why the plain packaging of tobacco products is compatible with GATT. The position of Australia has been reinforced by a number of third parties — such as New Zealand, the United Kingdom, Ireland, Norway, Canada, and others — which have also been pioneers in tobacco control and public health. Australia’s leadership in respect of tobacco control and plain packaging of tobacco products is further supported by larger considerations in respect of international public health law, human rights, and sustainable development.
Highlights
The World Health Organization (‘WHO’) has highlighted the serious, devastating impact of the global tobacco epidemic in a series of reports.[1]
Australia has provided a convincing case that plain packaging of tobacco products is compatible with the Trade-related Intellectual Property Rights (TRIPS) Agreement 1994, the clauses relating to the aims and objectives of the agreement; the requirements in respect of trade mark law; and the parallel measures in relation to access to essential medicines
The researchers found: ‘Compared with branded pack smokers, smokers who were smoking from plain packs rated their cigarettes as being lower in quality and as tending to be less satisfying than 1 year ago’.55. They argued that: Given that Australia is the first nation to implement plain packaging, our study provides an early investigation of its actual effects on smokers in a market where plain packs are available to all, compared with past studies that have experimentally exposed smokers to a single viewing of a plain or branded pack which may or may not have been their own brand, and naturalistic studies that have mocked-up plain packs for smokers to carry around with them in a trial situation.[56]
Summary
The World Health Organization (‘WHO’) has highlighted the serious, devastating impact of the global tobacco epidemic in a series of reports.[1]. The topic of intellectual property and public health has been the subject of much disputation in international trade law in respect of tobacco control and plain packaging in the 2010s. The piece is written from the perspective of evaluating the arguments of the countries involved in the trade dispute (which have been supported by the tobacco industry).[23] The article highlights the importance of public health and human rights in the context of international trade,[24] and supports the position of Australia that plain packaging of tobacco products is defensible under international trade law. The article concludes in Part VII that Australia’s plain packaging of tobacco products regime is consistent and compatible with international law on trade, and technical barriers to trade, intellectual property, and public health. The overarching argument of this article is that international trade law does need to pay due deference to international public health law, human rights, and sustainable development
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