Ireland, Plain Packaging, and the Olive Revolution

A world leader in public health, Australia introduced plain packaging of tobacco products. Julia Gillard – the Prime Minister of Australia at the time responsible for plain packaging – has observed:  “Since 1 December 2012, cigarettes packets in Australia do not sparkle with gold or silver and do not have any other way to catch and please the eye. They’re a uniform drab colour, with most of the box taken up with the most graphic health warnings. Gruesome pictures of disease perhaps better described as real pictures of the ugly truth.”

The public policy measure was designed to implement Australia’s obligations under international health law, and to address the public health impacts of tobacco. In particular, the measure was intended to address misleading and deceptive advertising by the Mad Men of the tobacco industry, which targeted consumers, including vulnerable populations, like children.

After epic litigation, the Commonwealth Government of Australia successfully and decisively defended plain packaging of tobacco products in the High Court of Australia. The Australian Government is currently defending the regime against further challenges by Big Tobacco under investment agreements and trade agreements, emphasizing that it is defending its sovereign right to protect the public health of Australian citizens. It is heartening that a number of other countries have joined the ‘Olive Revolution’ in tobacco packaging. New Zealand has indicated that it will follow suit, and introduce plain packaging of tobacco products. Uruguay has been supportive of plain packaging – as has Norway. There has been much debate in Ireland, Scotland, and England about the introduction of plain packaging of tobacco products.

As a veteran of the debates over plain packaging of tobacco products, I have watched the debate in Ireland over this public health measure, with great interest.

Ireland’s Minister for Health, Dr. James Reilly, has been a resolute advocate of plain packaging of tobacco products:

We are also working to introduce standardised tobacco packaging. This means that all forms of branding – trademarks, logos, colours and graphics – would be removed from tobacco packs. The brand name would be presented in a uniform typeface for all brands and the packs would all be in one plain neutral colour.

Australia was the first country in the world to introduce standardised packaging, in December 2012. We are in on-going contact with our Australian colleagues. They were successful in defending their legislation in the Australian courts, but are facing challenges now in the World Trade Organisation arena. So it won’t be an easy process. But it will be worthwhile.

The international research available to us, including a recent study by the Irish Cancer Society, indicates that standardised packaging can reduce the appeal of tobacco products and increase the effectiveness of health warnings. It also reduces the ability of branded tobacco packaging to mislead people about the harmful effects of smoking.

Reilly is prepared for legal conflict with the tobacco industry: ‘I’ll be astonished if there isn’t a legal challenge.’ He observed that it would be an ‘extraordinary society’ which put the intellectual property rights of an industry over the health of its citizens. Reilly stressed that graphic health warnings and plain packaging were ‘an appropriate measure to protect public health’. He stressed: ‘I believe that we must do what’s right, not what’s easiest’.

“We Have a Duty of Care to our Children”: Dr James Reilly on Plain Packaging of Tobacco Products

On World Cancer Day, John McCormack of the Irish Cancer Society highlighted the need for public health policy to focus upon preventative measures:

The government has made commitments in terms of cancer prevention.  Some are actively being pursued, others have become delayed. They have committed to a smoke-free Ireland by 2025 and as part of this politicians are in the middle of a consultation period on the plain packaging of cigarettes. This measure that once introduced will reduce the appeal of tobacco for young people, stop them from taking up smoking and decrease their risk of getting lung cancer.

 There has been significant debate in Ireland about the adoption of plain packaging of tobacco products.

How Tobacco Branding Influences Children – Irish Cancer Society

In its efforts to thwart the introduction of plain packaging of tobacco products in Ireland, Big Tobacco and its allies like the Law Society of Ireland have marshalled a number of arguments, similar to those which have been decisively rejected in Australia. It is disappointing that the Law Society of Ireland has been promulgating a number of myths promoted by Big Tobacco. It should know better than to uncritically adopt the rhetoric and the talking points of the tobacco industry.

First, the tobacco companies and the Law Society of Ireland show little regard or understanding of the WHO Framework Convention on Tobacco Control. The World Health Organization has supported the introduction of plain packaging in Australia and elsewhere. Dr Margaret Chan emphasized that ‘Plain packaging is a highly effective way to counter industry’s ruthless marketing tactics.’ Moreover, plain packaging ‘is also fully in line with the WHO Framework Convention on Tobacco Control.’ Dr Chan stressed that ‘The lawsuits filed by Big Tobacco look like the death throes of a desperate industry.’ She envisaged that Australia’s leadership would be followed by a number of other countries: ‘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.’

Second, Big Tobacco and the Law Society of Ireland shows a poor grasp of the TRIPS Agreement. Article 8 clearly states that ‘Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition.’ Over the past two decades, members of the WTO have taken action under the TRIPS Agreement to address a range of public health issues – such as access to essential medicines for HIV/AIDS, malaria, and tuberculosis. In private memos, even Big Tobacco has conceded that challenges to plain packaging under the TRIPS Agreement will provide them with ‘little joy.’

Third, the Law Society of Ireland demonstrates a weak understanding of the decision of the High Court of Australia on the plain packaging of tobacco products. Having watched the proceedings in person, and read all the submissions of the parties and the judgments, I can attest that the Australian Government won a decisive victory against Big Tobacco over plain packaging of tobacco products. By a majority of six to one, the High Court of Australia held that the plain packaging of tobacco products did not constitute an acquisition of property under the Australian Constitution. Chief Justice Robert French stressed that intellectual property law was designed to serve public purposes – not merely private interests. Justice Gummow emphasized that the Trade Marks Act did not confer ‘a liberty to use registered trademarks free from restraints found in other statutes.’ Justice Kiefel noted that labelling was commonplace for a wide range of products: ‘Many kinds of products have been subjected to regulation in order to prevent or reduce the likelihood of harm.’ Justice Crennan observed that the regime implemented international health law: ‘The objects of the Packaging Act are to improve public health and to give effect to certain obligations that Australia has as a party to the WHO Framework Convention on Tobacco Control.’ The High Court of Australia rejected the arguments made by Big Tobacco – and latterly, the Law Society of Ireland – that plain packaging violated intellectual property rights.

Fourth, the Law Society of Ireland has promulgating a number of Big Tobacco’s myths about plain packaging of tobacco products – such as the old furphy that plain packaging encourages ‘counterfeiting’ and ‘piracy.’ The Law Society of Ireland asserts that ‘the lack of distinguishing features on plain packaging will make it significantly easier to produce counterfeit tobacco products.’ On the 12 March 2014, Amy Corderoy from the Sydney Morning Herald reported that ‘Tobacco Industry Claims on Impact of Plain Packaging Go Up in Smoke’. She wrote: ‘Official Customs figures obtained by Fairfax Media indicate plain packaging has had almost no effect on tobacco smuggling, in direct opposition to the arguments the tobacco industry is using in its campaign to stop the health measure being adopted internationally.’ Indeed, the Australian Customs and Border Protection Service only found one single haul of illicit ‘plain packaged’ tobacco. In light of such evidence, the Law Society of Ireland should correct the public record, given the falsity of its claims.

Finally, the Merchants of Doubt – Big Tobacco – and their supporters, such as the Law Society of Ireland – have sought to cast doubt on the efficacy of plain packaging of tobacco products. Julia Gillard – the Australian Prime Minister who introduced plain packaging – has noted the initial evidence of the impact of the regime is positive:

Evidence is already available: plain packaging works. Smokers are more likely to consider giving up, and they’re also more likely to think the quality of their cigarettes has diminished. Research also shows that when young people look at plain cigarette packs, they believe the product is used by people who are less stylish and sociable, and not as attractive to mimic. This helps break the cycle of attracting young “replacement” smokers progressively taking the place of those older smokers who have quit or, too often, died.

Plain packaging of tobacco products is a useful means of combatting the meretricious marketing of the Mad Men of the tobacco industry. No wonder Big Tobacco has fought so long and hard against the introduction of plain packaging of tobacco products.

The Irish Cancer Council rightly questions why the Law Society of Ireland has been a buddy of Big Tobacco in the policy debates over plain packaging. Kathleen O’Meara from the Council emphasized: ‘We are clear that this proposal will not result in the State acquiring the property rights of the tobacco industry; rather it will restrict them and this is happening already with health warnings on cigarette packs.’ She notes that ‘the Constitution recognises that property rights have to be balanced with the social good, such as public health’. The Irish Cancer Council concluded: ‘Given that tobacco kills half its users and results in 5,200 deaths per year in Ireland, it is clear that this measure is a proportional response to a serious public health problem.’

It is also reassuring that the Irish legislature – the Oireachtas – has been sceptical of the arguments of Big Tobacco, and the Law Society of Ireland. Ciara Conway of Labour asked: ‘If the tobacco companies bring a challenge against the State, will members of the Law Society represent the tobacco industry?’ Jillian van Turnhout, an Independent, noted that ‘the State has a responsibility for the common good and also to ensure the public health’ and ‘the State will receive no financial benefit from doing that.’ She questioned whether one could easily extrapolate from constitutional disputes over property to matters of intellectual property.

Colm Burke of Fine Gael observed: ‘The Law Society has told the committee about intellectual property rights, but what about people’s right to live and to ensure that their lives are not at risk in any way?’ Mary Mitchell O’Connor of Fine Gael noted: ‘It seems that the constitutional cases that have been taken have been to do with land but Articles 40.3.2° and 43 of the Constitution recognise that in a civil society property rights have to be regulated by principles of social justice and in accordance with the common good.’ She stressed that ‘The common good will be to protect the health of the Irish people.’

John Crown – a consultant at St Vincent’s Hospital in Dublin and a Senator representing the National University of Ireland – has stressed: ‘This plain packaging bill is an attempt to hit the tobacco industry where it hurts; premium cigarettes are the main cash-generation engine of the industry.’ He noted: ‘With tobacco products undifferentiated by branding, they will be forced to compete on price alone, reducing the profits on tobacco, and reducing the value of each additional smoker.’ Crown emphasized: ‘This is a bad industry, which sells a bad product that kills about half of its consumers – consumers which it recruits as children.’ He warned against the reliance on lobbying by the tobacco industry: ‘We should limit our interactions with this industry as much as possible.’ Crown also warned of the propensity to engage in astroturfing. ‘The industry are past masters at creating false flag organisations.’

Rather than listen to Big Tobacco’s phony arguments about trade and intellectual property, Ireland should introduce the plain packaging of tobacco products to protect the common good and the public health of its people.

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Dr Matthew Rimmer is an Australian Research Council Future Fellow. He is an associate professor at the ANU College of Law, and an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA). He holds a BA (Hons) and a University Medal in literature, and a LLB (Hons) from the Australian National University. Rimmer is a researcher and commentator on the topic of intellectual property, public health, and tobacco control. He has undertaken research on trade mark law and the plain packaging of tobacco products, given evidence to an Australian parliamentary inquiry on the topic, and participated in the New Zealand debate on tobacco control as well.