Saturday 21 April 2012

One rule for tobacco

In a bizarre piece of reporting, The Age suggests that the adage 'smoking kills' implies that considerations of intellectual property do not apply to tobacco products.

As far as I understand the argument, the government denies that there is any issue that requires compensating tobacco companies, as the government is not seeking to acquire intellectual property belonging to tobacco companies, but to do away with it. There must be some reason that the argument is about acquiring intellectual property rather than depriving somebody of it. Why should the government be able to deprive anyone of assets, material or intellectual, for whatever reason, without proving that such a person or company has forfeited their goods by lawbreaking?

The government's legal team says 'it would be "incongruous" for the government to compensate a company for requiring a measure that had as its purpose the prevention of harm to the public'. Hm. (Let's not dwell on the absence of any evidence that the legislation will stop children smoking.) It then goes into absurdities: 
To liken it to the aim of the plain packaging measures, Mr Gageler said it would be inconceivable for rat poison companies to be paid compensation if they were prohibited from making the product package appealing to children. [emphasis added].
The scenario is absurd. Rat poison is not a product aimed at the general consumer. It has a very specific application. I am sure that anyone who had it in for rat poison manufacturers would be able to convince a judge that they had gone out of their way to make the packaging attractive to children.


(Okay, some of the tobacco packs are red, blue or green.) I still find it hard to believe that most people in the tobacco industry actively wish to entice children to smoke. All industries have unscrupulous mavericks who care only for corporate balance sheets. I see nothing in most tobacco packaging that is designed to entice children. The things are designed to entice people, and people start out by being children and grow to adulthood, trying things out as they go. Blaming tobacco companies for the curiosity of children is as ridiculous as it gets. Expecting them to create stuff that is unattractive to people is a fool's errand.

However the central point is the question put by Justice French to the prosecuting counsel:
Justice French put it to leading counsel Bret Walker, SC, who had referred to cases dating back to the 1870s in the United States, that none related to a product on the market that carried the risk of serious or fatal disease to all who used it.
Surely this is not relevant. Laws affecting branding and intellectual property apply to anything in the consumer market, and it is not for the courts to allow a new law to override such matters simply by flinging up its hands and declaring a product to be too dangerous. That's like saying that free speech shouldn't apply to dangerous people. The principle of free speech wouldn't be needed if we didn't have dangerous people. It wasn't invented because nobody was dangerous, it was invented in order to manage conflicts of interest.

We await the verdict in Australia with great interest.

1 comment:

Belinda said...

I should have added the essential point that tobacco ingredients are regulated by the Department of Health.

The point is that tobacco, thus far, is a regulated product. It is not acceptable to redefine the rules by saying that tobacco is too dangerous subject to the same legal principles as other products.