Author: Matthew Rimmer, ANU
As of December 2012, Australia will be the first country in the world where tobacco products will be sold in olive plain packaging without branding.
There has been much discussion as to whether this pioneering initiative will spark an ‘Olive Revolution’ around the world — with other countries adopting the plain packaging of tobacco products. Australia’s neighbours in Southeast Asia would particularly benefit from tobacco control measures such as the plain packaging.
After hearing extensive argument, on the 15 August 2012, the High Court of Australia rejected the challenges by tobacco companies to the validity of the Tobacco Plain Packaging Act 2011 (Cth), and awarded costs against them. The orders noted: ‘At least a majority of the Court is of the opinion that the Act is not contrary to s 51(xxxi) of the Australian Constitution’. The Court will publish its reasons for decision at a later date. The High Court of Australia is a well-respected superior court, with great expertise in intellectual property. The ruling will be an important and influential precedent throughout the world.
The Australian government welcomed the High Court’s decision. Prime Minister Julia Gillard commented proudly on the decision, stating that ‘the message here and around the world is now clear: you can beat big tobacco’. The Attorney-General Nicola Roxon observed: ‘This decision is good news for every parent who worries about their child taking up this habit’. The Health Minister Tanya Plibersek commented: ‘Because of today’s decision, cigarette packages will no longer be able to go with branding that looks cool or sophisticated or macho or feminine’.
Australia’s trade minister Craig Emerson also stressed that the High Court’s decision will strengthen Australia’s defence of the plain packaging of tobacco products in all international forums: ‘Australia will strongly defend its right to regulate to protect public health through the plain packaging of tobacco products’. He emphasised that the Australian government would vigorously defend a challenge against it by Ukraine, Honduras and the Dominican Republic through the World Trade Organization. Both the TRIPS Agreement 1994 and the Agreement on Technical Barriers to Trade 1994 have long recognised that member states can take measures necessary to protect public health.
Philip Morris Asia Limited has also brought a contrived investor-state arbitration claim under the Australia-Hong Kong Agreement on the Promotion and Protection of Investments 1993. Emerson has stressed that Australia will vigorously defend plain packaging under this investment regime. There has also been concern that Big Tobacco is trying to exploit the Trans-Pacific Partnership.
Australia’s position is strong, particularly as plain packaging of tobacco products is a measure designed to implement the WHO Framework Convention on Tobacco Control.
The World Health Organization
The World Health Organization (WHO) welcomed the landmark ruling and called upon the ‘rest of the world to follow Australia’s tough stance on tobacco marketing’. The Director-General of WHO, Dr Margaret Chan, emphasised that the ruling would encourage other countries to implement tobacco control measures, such as the plain packaging of tobacco products:
With Australia’s victory, public health enters a brave new world of tobacco control. Plain packaging is a highly effective way to counter industry’s ruthless marketing tactics. It is also fully in line with the WHO Framework Convention on Tobacco Control. The lawsuits filed by Big Tobacco look like the death throes of a desperate industry. With so many countries lined up to ride on Australia’s coattails, what we hope to see is a domino effect for the good of public health. The case is being watched closely by several other countries who are considering similar measures to help fight tobacco.
Chan implored other countries, particularly in Southeast Asia, to take steps to reduce the demand and supply for tobacco products under the WHO Framework Convention for Tobacco Control.
In the wake of the ruling of the High Court of Australia, there has been much discussion as to whether other countries in Australasia, Asia and the Pacific will follow Australia’s Olive Revolution in respect of plain packaging of tobacco products.
The New Zealand Government has engaged in public consultations on the plain packaging of tobacco products. The New Zealand Government has been emboldened by the victory of the Australian Government in respect of plain packaging of tobacco products. The Associate Health Minister, Tariana Turia, said: ‘We’re interested in the health and well-being of families and we’re here to support the families who lose 13 people a day here in New Zealand’. In response, Big Tobacco has launched an advertising campaign, threatened legal action, and engaged in political lobbying in New Zealand — much as it did in Australia.
However, as public health regulations tighten in developed countries, Big Tobacco has increasingly targeted Southeast Asia. A media adviser for Philip Morris International observed: ‘A home to over half of the world’s population, the Asian region is very important for any global consumer goods company’.
Critics have been alarmed by Big Tobacco’s move to target Southeast Asia, arguing that the tobacco giants ‘are just wilfully imposing a pandemic on developing countries’. Australian health journalist, Jill Stark, noted that as ‘the industry begins to lose its grip in developed nations, a humanitarian disaster looms in poorer countries, particularly in the Asia Pacific’.
A number of foreign correspondents for Fairfax considered the state of tobacco control measures in a number of Southeast Asian countries. In a haunting piece, John Garnaut wrote about tobacco sponsorship of primary schools in China — with advertising in playschool yards. Michael Bachelard and Jill Stark considered the wild west of tobacco advertising and sponsorship in Indonesia. Disturbingly, the reporters observed that there are scores of pre-schoolers addicted to nicotine. Lindsay Murdoch documented Thailand’s efforts to curb tobacco supply and demand. He also noted the corrupting influence of Big Tobacco in East Timor — with the sponsorship of football tournaments for youth. Murdoch observed: ‘In the Philippines, where the smoking rate is 47.6 per cent for men and 9 per cent for women, President Benigno Aquino is moving to introduce a ‘sin tax” on alcohol and cigarettes, which prompted opposition from tobacco companies, led by Philip Morris Fortune Tobacco Corp’.
For the Fairfax special on tobacco in Southeast Asia, Ben Doherty considered the battles over tobacco control in India. A task force of public health experts from Australia and India have presented a report to the New Delhi Parliament, urging the Indian Government to act on the plain packaging of tobacco products. Shakuntala Gamlin, joint secretary in the Ministry of Health, welcomed the report: ‘Plain packaging, particularly the Australian case study, can be an example for India’. India would be undaunted by legal threats by Big Tobacco. India has been a veteran of battles over intellectual property and public health (particularly in the area of access to essential medicines). Public health advocates in Pakistan have also been calling for the adoption of plain packaging of tobacco products.
Bungon Rittiphakdee, the director of the Southeast Asia Tobacco Control Alliance (SEATCA), provided a bleak portrait of tobacco control in Southeast Asia: ‘Among the 10 countries in ASEAN, four countries already have pictorial warnings — Brunei, Singapore, Malaysia and Thailand — and another six countries they still have only the text warnings’. SEATCA has called upon ASEAN to stand up to tobacco companies and implement comprehensive tobacco control measures.
The Australian government could well play a leading role in the control of tobacco products in Southeast Asia — especially through assisting in the implementation of measures, such as graphic health warnings and the plain packaging of tobacco products.
Matthew Rimmer is an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change. He is an Associate Professor at the College of Law, the Australian National University.