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.”