The Prospects for Tobacco Plain Packaging in Asia: No Longer Smoke up in the Air?

Abstract

The finalization of negotiations over the Trans-Pacific Partnership (“TPP”) in October 2015 saw an exemption for tobacco products in the investor-state dispute settlement mechanism. This carve out for tobacco products paved the way for governments to consider introducing plain packaging without the concern that tobacco companies would take legal action against them. Most prominent, however, has been the World Trade Organization’s (“WTO’s”) 2018 ruling affirming a country’s right to impose tobacco plain-packaging rules because WTO agreements contain exemptions that permit countries to implement regulations which deemed it necessary to protect the health of their citizens. This article discusses the impact of this decision on initial proponents of tobacco plain packaging including Australia who have introduced statutory limitations on tobacco plain packaging, and the impact that these negotiations will have on opponents of plain packaging, particularly for countries in Asia with establishing trademark regimes. This article presents fresh insight into the legality or otherwise of this tobacco control measure under the Agreement on Trade-Related Aspects of Intellectual Property Rights, relevant international health instruments, and negotiations over the TPP. In particular, it makes pertinent policy recommendations to pave the way forward for legislatures and policy-makers after an analysis of whether plain packaging comes within the scope of the international system for trademark protection as implemented in Thailand, the People’s Republic of China and Australia.