Our bold approach to plain packaging inspiring others

What are some of the key issues and debates highlighted in this book?

The book provides a discussion of the legal implications of plain tobacco packaging in its historical and social context, including the development of tobacco control measures in Australia. It also considers the lawfulness of plain packaging under Australian Constitutional Law and international trade and investment law. The High Court of Australia (Australia’s highest court) has rejected a constitutional challenge to the legislation, and the trade and investment issues are being examined in ongoing disputes in the World Trade Organization and pursuant to the Hong Kong-Australia Bilateral Investment Treaty. The book also examines related international cases such as the investment dispute between Philip Morris and Uruguay and how plain packaging would fare in the EU legal framework.

Could Australia’s plain packaging legislation be seen as a precedent for other countries?

Other countries considering legislation of this kind include New Zealand and the UK. They have both held public consultations, and it looks like New Zealand will be the next country to adopt plain packaging.

The circumstances for each country are going to depend on whether that country has a constitution and the scope of constitutional protections. For example, other constitutions might have similar provisions to Australia in relation to acquisition of property, but some constitutions would also have stronger provisions regarding freedom of commercial speech or protection of public health. 

The Australian government’s win in the High Court has set an important precedent for other countries, increasing the likelihood that other countries will follow suit. The outcome of the trade and investment disputes (which I predict the Australian government will win) will have an even bigger impact on the rest of the world, and that is what the tobacco industry is most concerned about. 

Why did tobacco companies fail in the High Court case against the Australian Federal Government?

That case concerned a claim by tobacco companies that plain packaging amounts to an acquisition of property on other than just terms (that is, without compensation). A six to one majority of the Court held that an acquisition arises only where the government or another obtains a proprietary benefit as a result of the measure. Although plain packaging contributes to the government’s health objectives, that benefit is not proprietary and therefore plain packaging does not effect an acquisition of property.

Why was it important to draw on the World Health Organization’s (WHO) Framework Convention on Tobacco Control?

One of the purposes of plain packaging, according to the legislation itself, is to give effect to certain of Australia’s obligations as a party to the WHO Framework Convention on Tobacco Control. In that sense, that treaty is relevant to domestic claims within Australia and also within many other countries that might adopt similar measures, given the large number of parties to the treaty (currently 176).

The treaty will also likely be used in the ongoing international claims against Australia to support Australia’s contention that plain packaging will contribute to its public health objectives. The treaty and associated guidelines confirm that this is not just a unilateral measure that Australia has taken; rather, multilateral support exists for plain packaging even though we are the first country to implement it.

How do you think your book will contribute to international debates on plain packaging?

The book is very timely because of the disputes that are going on against Australia at the moment, and the fact that other countries are now looking at this approach. We will keep researching in this area for at least the next three years, pursuant to major research grants from the Australian National Preventive Health Agency and the Australian Research Council. 

www.mls.unimelb.edu.au