In addition to many other tobacco control measures that have sharply reduced smoking within its borders, Australia in 2011 became the first country to adopt a tobacco plain packaging law. Intended to reduce smoking, especially among young people, the law requires tobacco packs to be sold without attractive designs, logos, and colors, and with health warning images and text. Research indicates that plain packaging contributes to lower smoking rates and thus fewer premature deaths. Australia is indubitably a tobacco control lodestar for other countries.
The tobacco industry and several stalking horses have, however, combatted plain packaging by launching legal actions against Australia in three different forums: the Australian High Court, an Investor-State Dispute Settlement (ISDS) tribunal, and the World Trade Organization (WTO). Australia won the first two cases. The WTO case has taken longer and is still ongoing.
In the WTO arena
The WTO case was originally filed by Cuba, the Dominican Republic, Honduras, Indonesia, and Ukraine in 2012 and 2013 (Ukraine withdrew from the case in 2015). The complainants alleged that Australia’s plain packaging law violated the WTO’s Agreement on Technical Barriers to Trade (TBT) and Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). This legal creativity clouded the real objective: protect tobacco sales.
On June 28, 2018, in an 888 page ruling, the WTO panel rejected the complainants’ case and ruled that Australia’s plain packaging law is in line with WTO rules. An excellent and succinct legal analysis by lawyer and Melbourne Law School (Australia) Professor Tania Voon, can be read here.
And then there were two
Although Cuba and Indonesia chose not to appeal the WTO plain packaging ruling, Honduras and the Dominican Republic did. WTO appeals must be based on points of law—such as legal interpretation—and cannot re-open factual findings made by the panel. In their appeals, the remaining complainants contend, among other things, that the ruling’s interpretations related to TBT and TRIPS are in error. Considering the unlikely chances of success, it is unclear why Honduras and the Dominican Republic appealed and how they have adequate financial resources to continue the legal battle. The appeal process could take years particularly because of the shortage of WTO judges, partially because the United States is blocking new judicial appointments.
Plain packaging spreads
Although multiple legal actions never stopped plain packaging in Australia, it is likely that many countries delayed their own plain packaging laws for fear of huge litigation costs. Despite the WTO plain packaging case being appealed, however, the national floodgates now appear to be open. France, Hungary, Ireland, New Zealand, Norway, Slovenia, and the United Kingdom have implemented plain packaging; Burkina Faso, Canada, Georgia, Romania, Slovenia, and Thailand have passed plain packaging laws and are in the process of implementation; and Belgium, Colombia, India, Panama, Malaysia, Turkey, and Singapore are considering adopting plain packaging. Although the delays by litigation have been detrimental to public health, Australia’s perseverance and the acumen of the judicial arbiters appear to be prevailing.