Plain packaging moves across the world

In Australia the case opens in court as the tobacco companies defend their intellectual property against the plain packaging laws. The Australian government is confident of victory, arguing that it will not gain directly by confiscating tobacco brand markings.

The Commonwealth argues that even if big tobacco could prove the government was acquiring their property rights the manufacturers still wouldn't win in court.   

That's because the purpose of the plain packaging legislation - namely to improve public health - is within the scope of the Commonwealth's legislative power under the constitution's commerce, trade and external affairs powers.

This sounds like a blank cheque book: claim health grounds and you have a legal basis for any action. Even if the result were certain to be as the government claim, would this over-ride the legitimate requirements of traders to be able to legally brand their goods?

The legal arguments are beyond me but this link shows that opposition to the plain packaging proposals is shared with many bodies such as the US Chamber of Commerce. The Express has also opposed the policy. This link from Brand Republic gives a number of views including one from its own industry – not heard enough:

"Just focusing on the connection between branding and smoking behaviour may be a distorted way of looking at the way of branding. 

"Branding on pack is about differentiating product and competition on the basis of quality, reputation and price but if all the packs look the same you move very quickly towards a generic commoditised market place and that is typified by price competition. 

"It means there is a loss of incentive for companies to invest in quality and reputations because they have no way to communicate that to consumers. While I’m sure the familiar brands will continue, if you were to launch a new product into the market it can only be a price fighting product and if that is a means of reducing prices to consumers then actually it may result in more people smoking rather than less because it becomes a very price sensitive market.

Here the government consultation on plain packaging has opened: coordinated by the Department of Health to cover all the legislative assemblies as well as England. (It's worth responding: the EC had to publish responses to its Consultation on revising the Tobacco Products 2001 Directive. The public didn't like its proposals and this showed up in the consultation responses. It also showed that the tobacco company was not alone in opposing an extension to tobacco control. The more embarrassment they get the better.)

Simon Clark says in his blog that Andrew Lansley promised an independent review* of the evidence on plain packaging. I haven't read this review yet, but since it is co-authored by a team including Gerard Hastings, Linda Bauld and Crawfood Moodie (refer to front page of the report for their affiliations), it cannot be described as independent. As Simon says, 'there is not a single marketing, communications or branding expert on the panel'. Perhaps they would have been considered vested interests?

*yes he really did! Jesus, they surpass themselves. 'The Department of Health has ... commissioned an independent academic review of the existing evidence on the effects of plain packaging'. Said independent review is authored by a team of ten people, affiliated with the University of Nottingham, the Cancer Research UK Centre for Tobacco Control Research at the Institute of Social Marketing at Stirling University, and the UK Centre for Tobacco Control Studies. I've said this before: Cancer Research includes in its funding conditions for tobacco-related research the provision that research 'support current UK policy priorities', including plain packaging. How the {censored} does he get off with calling this an independent academic review?

h/tip Simon Clark for the link

Bad news day for Australian government

The Australian government failed to bring the plain packaging through the Australian Senate (upper house) when the Conservative opposition forced the vote to be postponed. This throws into question the  Government's timetable for implementing the legislation. The vote will now take place in November.

There is, as frequently happens in the world of tobacco control, a sense of shock: how could the opposition 'play into the hands of the tobacco companies': we have international obligations:

Australia says the new laws reflect its obligations under the World Health Organization's 2005 framework against tobacco, which urges states to consider plain packaging laws. 

Voices like this seek to exclude the tobacco industry from national debate, and marginalise people in society who don't subscribe to the WHO's wild guesses about how many people die from tobacco consumption and their ideas about what to do about this.

Concern about the plain packaging is not limited to the Australian opposition. Indeed it is international, reflected both by the US Chamber of Commerce and tobacco growers:

The laws have angered tobacco producers who have threatened a High Court challenge, while the governments of Nicaragua and Ukraine said the new measures breached international trade rules and would be challenged in the World Trade Organization.

Tobacco companies are also threatening legal action against the legislation. Yesterday Sheila Duffy of ASH Scotland expressed her eagerness to see this legislation enacted. She will be sadly disappointed by today's non-result in Australia – but she was over-optimistic in believing that today's vote would  'see the end of a bitter and protracted struggle in Australian politics'.  Not only the tobacco companies will resist this policy fad of tobacco control.