A proposal to consider plain packaging for tobacco products was raised in Malaysia at the International Nicotine Addiction Conference in Kuala Lumpur on April 23 and 24 2015.
This issue has arisen in recent years and in 2012, the Australian High Court found in favour of the Australian government that the labelling requirement of the Tobacco Plain Packaging Act 2011 was not unconstitutional following a legal challenge by tobacco giants British American Tobacco, Japan Tobacco International, Philip Morris and Imperial Tobacco Australia Limited in 2011. Following this decision, various countries have lodged complaints with WTO seeking sanctions against Australia for breach of the TRIPs Agreement on grounds that the decision undermines the full protection of IP rights guaranteed under the TRIPs Agreement. A decision from the WTO panel is anticipated in 2016.
It will be interesting to see if Malaysia will follow suit and implement legislation for plain packaging for tobacco products.
The justification supporting such legislation is the overriding health concerns. However, there are strong arguments that plain packaging regulations may usurp the rights conferred by the Malaysian Trade Marks Act for the protection of trade marks, and may also breach a fundamental right and liberty accorded by the Federal Constitution of Malaysia which states that "no person shall be deprived of property save in accordance with law". In addition, Malaysia may also risk violating the spirit and objectives of several international and ASEAN treaties to which Malaysia is a signatory.
There is also the overall principle of proportionality: not only must any legislation or regulation be enacted for a legitimate purpose, it must also be proportionate in scope and effect. IP owners affected by such legislation argue that plain packaging legislation goes beyond what is reasonable to protect public health. It is contended that there is no study or evidence that conclusively proves that plain packaging would have at least reasonable prospects of decreasing smoking. An adult who has made a conscious and well-informed decision to smoke will not likely to be deterred by unattractive packaging. A consumer's decision to purchase cigarettes may not be heavily motivated by the attractiveness or appeal of its packaging. Rather, it is the physical effect derived from smoking that encourages a consumer to continue purchasing cigarettes. On this basis, it is argued that the implementation of plain packaging regulations does not appear to be rationally connected to the objective of reducing the purchase of cigarettes in the interest of public health.
These are not easy issues for any legislator to grapple with and it will be interesting to see the outcome of the WTO decision in 2016 in response to WTO complaints lodged against Australia.
|Chew Kherk Ying
Wong & Partners
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