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Big tobacco's huff and puff is just hot air MARK DAVISON | THE AGE | May 4,
2010
Legal threats over plain cigarette packaging have no basis in law. My late father, a Presbyterian minister, joked that on occasions he would write sermons with the following note to himself: ''Shout here, the argument is weak.'' The tobacco industry is shouting very loudly about the Australian government's proposals for plain packaging of cigarettes. The industry claims the proposed legislation would be illegal and it would be entitled to massive financial compensation if such laws were passed. In line with my father's approach, it needs to shout much, much louder because its legal arguments are anaemically weak. The plain packaging proposals would restrict cigarette companies to identifying their brands with simple words in plain font only. No artwork would be associated with or part of the branding of the cigarettes. The intent is that smokers could continue to obtain the brand of their choice, but the visual appeal of the packets to non-smokers, especially children, would be reduced. These are not recent suggestions. All aspects of the proposals, including their legal implications, have been the subject of global research and consideration for well over a decade. The government's decision to adopt the proposals is the culmination of a detailed and thorough national and international process. There are two main legal arguments put by the tobacco industry about the legality of the proposals. Neither withstands any meaningful scrutiny. The first is that the proposals would involve an acquisition of property by the government, and that under our constitution the government can do that only on ''just terms''. The industry claims that mandating plain packaging would be an acquisition of its property rights in its trademarks, and such acquisition requires monetary compensation. It is true that trademarks are property. What is not true is the suggestion that the proposals would involve the government acquiring those trademarks. The government wants to restrict the use of them by their owners but has no interest in acquiring them for itself. Highly respected constitutional law experts professors Greg Craven and George Williams have unequivocally rejected the industry's argument. The industry will be hard-pressed to identify a constitutional law expert who disagrees with them. The second argument is that tobacco companies have a right under international law to use their trademarks. They do not. No such words appear in the World Trade Organisation agreement dealing with intellectual property. A seminal decision of the organisation addressing the nature of a trademark owner's rights stated categorically that trademark owners do not have the right to use their trademarks. They are entitled to prevent others from using their trademarks, but that is all. In addition, the agreement has a provision stating that: ''Members may, in formulating or amending their laws
and regulations, adopt measures necessary to protect public health.'' The trademark provisions of the agreement need to be interpreted in light of these fundamental and undeniable legal principles. Finally, there exists an international treaty specifically dealing with tobacco issues. The World Health Organisation Framework Convention on Tobacco Control requires its 168 parties to implement a comprehensive prohibition on the promotion of tobacco. In 2008, the parties to the convention unanimously adopted guidelines recommending that parties consider plain packaging in order to achieve that objective. Australia is simply intending to be the first cab off the rank in adopting that option. If our government declined to take action every time an industry alleged its rights were being affected and the industry was therefore entitled to compensation, it would probably never take any action. Instead of measuring the volume of the complaint, we should examine the legitimacy of the arguments and any conflict of interests of those who make the arguments. The tobacco industry's legal arguments are simply not credible. They are a smokescreen designed to scare the government into backing down. As to conflicts of interest, I should declare mine. On two occasions, the Cancer Council Victoria has supplied me with some very nice sandwiches and some orange juice, although I suspect the orange juice may have been reconstituted rather than fresh. Those who are shouting on behalf of the tobacco industry may have been more richly rewarded by that industry, but it is a matter for them to declare their interests. Or not. In any event, the tobacco industry will struggle to find independent legal experts prepared to back its legal claims. No doubt the shouting will continue for a while yet. There may even be litigation, although the industry may prefer not to be required by court processes to reveal how its promotion strategies influence the decisions of children. Ultimately, our government must maintain its resolve in the face of the industry's bluff and unreasoning noise. Mark Davison is a professor of law at Monash University. He is the author of several major works relating to intellectual property and competition law.
