Battle Over “Plain Packaging” of Consumer Products Enters New Phase Down Under

With this post, The Legal Pulse reaches a milestone of 500 posts.

Cross-posted by Forbes.com at WLF’s Contributor Page

Last April, a Washington Legal Foundation Legal Pulse post noted the latest developments in an international movement to impose “plain packaging” on consumer products. The movement has (of course) initially targeted tobacco products. The development was draft legislation introduced in the Australian Parliament.

Last month, the Parliament formally adopted the plain packaging regime, making Australia the first nation to fully seize packaging design decision-making away from a consumer products business. The Parliament did so despite clear statements from the affected companies that the law would be challenged as a violation of their trademark rights under national and international law.

Two companies, Imperial Tobacco and BAT (which has the largest market share in Australia) have filed legal challenges in the High Court of Australia.  A third, Philip Morris Asia, has invoked a provision in a Hong Kong-Australia trade agreement which requires the arbitration of disputes when a business feels one of the treaty signatories has violated the treaty.

As WLF argued in comments submitted in February 2010 to the Australian Parliament’s Senate Community Affairs Committee, plain packaging proposals are an entirely counterproductive way to address health concerns of tobacco consumption. Plain packaging laws will boomerang on those nations adopting them by creating a vigorous black market in cigarettes and forcing tobacco prices down as new and cheaper cigarettes enter the marketplace.

Such realities are unlikely to deter public health activists, whose drive toward plain packaging laws amounts to an ideological crusade. In their world, legal protections for property rights like trademarks should not exist and, as the head of the UN’s World Health Organization put it, any effort to uphold those rights amounts to “harassment.”

Front-of-Package Rating System Government’s Next Tool in “Guiding” Consumers’ Food Choices?

Commodus from "Gladiator"

Cross-posted by Forbes.com at WLF’s Contributor Page 

A recent study by the Institute of Medicine (IOM) has offered the federal government a new way to pass judgment on the food choices of American consumers. The study suggests a visual check-mark system be mandated for the front of food packages where the government can give its thumbs up or thumbs down based on nutrition criteria it sets.

Will the Food & Drug Administration (FDA) thrill all the food activists and implement this approach to labeling? But before considering that, let’s take a quick look at how we got to this point on “front of package” (FOP) labeling.

In 2009, FDA issued informal guidance on FOP labeling as food producers began to place nutrient content, calories, and other information on the front of packages. FDA indicated it was beginning to formulate rules for FOP labeling, but did not discourage industry efforts to pursue a voluntary, uniform FOP labeling program. In January 2011, industry leaders introduced “Nutrition Keys,” which has since been refashioned and renamed “Facts Upfront.” Continue reading “Front-of-Package Rating System Government’s Next Tool in “Guiding” Consumers’ Food Choices?”