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The full WTO decision is due to be published in July, after an interim report was circulated to the parties on May 2. Meanwhile, many other countries are already introducing plain packaging, the latest being the UK where it becomes mandatory this Sunday.
In 2015, INTA’s Board agreed a Resolution that plain packaging measures “should be rejected or repealed since they violate various international treaties and national laws on trademark protection”. Concerns have also been expressed that plain packs make counterfeiting easier, and that they could easily be extended to other sectors.
For the second time, Japan Tobacco International (JTI) is exhibiting at the INTA Annual Meeting, with a circus-themed booth highlighting the impact of increased regulation of brands. In response to questions from Managing IP, the company said it remains “categorically opposed” to plain packaging: “Plain packaging, which is in effect a ban on branding, is like an unguided missile. It violates the very principle of intellectual property ownership and completely ignores the important role that brands play in guiding but also protecting consumers.”
It added that the WHO is also targeting other industries, including unhealthy diets and alcohol abuse: “Regulators are already copy-pasting tobacco-style regulations into other sectors without any thought as to how they might backfire. We see more and more proving points of the Slippery Slope – the domino effect of tobacco-style regulation being applied to other sectors – spreading globally. Some of them are presented at our stand.”
But public health campaigners reject these arguments. Matthew Rimmer, professor of IP and innovation law at Queensland University of Technology, said there is a long history of governments regulating labelling. “In my view, the slippery slope arguments (especially in Australia and New Zealand) were complicated and overstated. We haven’t seen plain packaging replicated in other fields of public health regulation in Australia. In respect of soft drink and junk food, the sugar tax seems to be an earlier public policy step.”
If the WTO does side with Australia, it will be the latest forum to find against the tobacco companies. The CJEU, UK and Australian courts have all rejected legal challenges. Rimmer believes the decision will lead more countries to introduce similar laws: “Countries like India, China, and Indonesia should consider the adoption of plain packaging of tobacco products given the tobacco epidemic in those countries.”