American Journal of Law & Medicine

Plainly Constitutional: The Upholding of Plain Tobacco Packaging by the High Court of Australia

I. BACKGROUND

In November 2011, Australia became the first country in the world to legislate for "plain packaging" of tobacco products. As of December 1, 2012, the packaging of tobacco products sold in Australia must be a standard, drab dark brown color; and the printing of tobacco company logos, brand imagery, colors, or promotional text on that packaging and on individual tobacco products is prohibited. (1) While the Australian scheme is described as "plain packaging," (2) tobacco packaging is required to be far from "plain" in the ordinary sense of the word. The scheme requires large health warnings composed of graphics, warning statements and explanatory messages, and information messages.

Plain packaging of tobacco products--which has also been called "generic packaging" or "standardized packaging"--is not a new idea. It was proposed as far back as June 1986, when the Canadian Medical Association agreed to a motion in favor of its adoption. (3) It was only a matter of time before the first country introduced plain packaging, an inevitability accelerated by the entry into force in February 2005

of the WHO Framework Convention on Tobacco Control (FCTC) (4) and the adoption in November 2008 by its Conference of the Parties of guidelines on the implementation of Articles 11 (packaging and labeling) and 13 (tobacco advertising, promotion, and sponsorship) of the Convention, both of which recommend that Parties consider the adoption of plain packaging, and significantly strengthen the policy, political, and legal bases underpinning it.

It was no surprise that Australia long an international leader in tobacco control--became the first country to implement plain packaging, (5) nor that its decision to do so would be met with fierce opposition by the tobacco industry. The tobacco industry has long feared plain packaging, and it is well aware of the "domino effect" history of tobacco control, with one jurisdiction's world-first initiative inevitably being followed by many others. The tobacco industry has long asserted that plain packaging would breach a range of domestic and international laws; (6) and claims that plain packaging would be unconstitutional and would lead to Australian taxpayers having to pay the tobacco industry billions of dollars in compensation were a central part of the tobacco industry's vigorous campaign against its introduction. (7)

This Article aims to provide an overview of Australia's plain packaging regime, and the decision of the High Court of Australia upholding that regime, that will be helpful to those considering legal issues relating to plain packaging in other domestic jurisdictions, and in the ongoing challenges to Australia's legislation in the World Trade Organization (WTO) (8) and under a bilateral investment treaty between Australia and Hong Kong. (9) There seems little doubt that Australia will not be the only country to introduce plain packaging. Both the New Zealand (10) and United Kingdom governments (11) have launched public consultations on the introduction of plain packaging. A private member's bill has been introduced in India, (12) and the South African Health Minister has expressed support for plain packaging. (13)

Part II of this Article outlines the requirements of the Australian regulatory scheme, and its objects and rationale. Part III explains the High Court challenges brought against the scheme by the tobacco industry, and analyzes the High Court's six-to-one decision upholding the legislation. It seeks to draw out the major themes and narratives that underlie the decision of the majority, and to outline the reasoning of the dissentient. Part IV offers some concluding observations.

II. THE REGULATORY SCHEME

A. THE REQUIREMENTS

Under the scheme constituted by the Tobacco Plain Packaging Act 2011 (Cth) (TPP Act) and the Tobacco Plain Packaging Regulations 2011, as amended by the Tobacco Plain Packaging Amendment Regulations 2012 (No. 1) (Cth), (TPP Regulations):

* the outer and inner surfaces of retail packaging must have a matte finish and be a drab dark brown color (known as Pantone 448C); (14)

* no trade marks or other marks may appear on retail packaging except brand, business, company or variant name, which must be in prescribed font, size and color (with the exception of the Quitline trade mark and certain other marks prescribed by the Regulations); (15)

* the outer and inner surfaces of retail packaging must not have any decorative ridges, embossing, bulges or other irregularities of shape or texture, or any other embellishments; (16)

* packs and cartons must be rigid and made of cardboard, and each outer surface must be rectangular when the pack or carton is closed; (17)

* all edges of packs and cartons must be rigid, straight and not beveled or otherwise shaped or embellished in any way; (18)

* cigarette packs must meet requirements for height (between 85 and 125mm), width (between 55 and 82mm) and depth (between 20 and 42mm); (19)

* no part of the retail packaging of tobacco products may make a noise or produce a scent that could be taken to constitute tobacco advertising and promotion; (20)

* retail packaging of tobacco products must not include any features designed to change the packaging after sale such as heat-activated inks and inks that appear fluorescent in certain light; (21)

* retail packaging of tobacco products may not have inserts or onserts; (22)

* no trade mark or other mark may appear anywhere on a tobacco product; (23) and

* the paper casing of cigarettes must be white or white with an imitation cork tip. (24)

The TPP Act and TPP Regulations operate in conjunction with the Competition and Consumer (Tobacco) Information Standard 2011 (the "Standard"), (25) which also commenced operation on December 1, 2012. The Standard includes requirements for large health warnings comprising graphics, warning statements, and explanatory messages--required to cover at least seventy-five percent of the front surfaces of most tobacco product packaging, including cigarette packaging (an increase from thirty percent), and ninety percent of the back surface for cigarette packaging and seventy-five percent for most other tobacco products--and information messages on the health effects of chemicals in tobacco smoke on the side of cigarette packs and cartons and on most loose tobacco packs. (26)

B. OBJECTS AND RATIONALE OF THE TPP ACT

The objects of the TPP Act are:

(a) to improve public health by

(i) discouraging people from taking up smoking, or using tobacco products; and

(ii) encouraging people to give up smoking, and to stop using tobacco products; and

(iii) discouraging people who have given up smoking, or who have stopped using tobacco products, from relapsing; and

(iv) reducing people's exposure to smoke from tobacco products; and (b) to give effect to certain obligations that Australia has as a party to the FCTC. (27)

The Act states that:

(2) It is the intention of the Parliament to contribute to achieving the objects ... by regulating the retail packaging and appearance of tobacco products in order to:

(a) reduce the appeal of tobacco products to consumers[;]

(b) increase the effectiveness of health warnings on the retail packaging of tobacco products[;] and

(c) reduce the ability of the retail packaging of tobacco products to mislead consumers about the harmful effects of smoking or using tobacco products. (28)

The introduction of plain packaging was announced by the Australian Government in April 2010 as part of a "comprehensive suite of reforms to reduce smoking and its harmful effects," which also included a twenty-five percent excise increase, further investment in anti-smoking social marketing campaigns, and legislation to restrict the advertising of tobacco products on the internet. (29) The Explanatory Memorandum to the Bill notes that tobacco smoking remains one of the leading causes of preventable death and disease among Australians, killing over 15,000 Australians every year and imposing annual social costs of around $31.5 billion, and that approximately 3 million Australians smoke. (30) It affirms the Australian Government's commitment to reaching performance benchmarks set under the 2012 Council of Australian Governments National Healthcare Agreement of reducing the national smoking rate to ten percent of the population by 2018 and halving the Aboriginal and Torres Strait Islander smoking rate. (31)

The plain packaging scheme is based on a number of findings from a large volume of social science research: (32)

* "[m]essages and images promoting the use of tobacco products can normalize tobacco use, increase uptake of smoking by youth, and act as disincentives to quit"; (33)

* "packaging of tobacco products is an important element of advertising and promotion, and its value has increased as traditional forms of advertising and promotion have become restricted in countries such as Australia"; (34)

* the primary role of tobacco packaging is to "promote brand appeal, particularly to youth and young adults"; (35)

* "plain packaging has been shown to be less appealing for youth who might be thinking of trying smoking"; (36)

* "[m]any smokers are misled by pack design into thinking that certain cigarettes may be safer"; (37)

* "[p]ack design can also distract from the prominence of graphic health warnings"; (38)

* "the inclusion of brand names and other design embellishments on cigarettes are strongly associated with the level of appeal and perceived traits associated with branding, such as sophistication"; (39) and

* "innovative packaging shape, size, and opening ... created strong associations with level of appeal and perceived traits associated with branding." (40)

The prescribed drab dark brown color was selected on the basis of market research which showed that it "was optimal in terms of decreasing the appeal and attractiveness of tobacco packaging, decreasing the potential of the pack to mislead consumers about the harms of tobacco use, and increasing the impact of graphic health warnings." (41)

C. TWO SIGNIFICANT FEATURES OF THE ACT

Two other features of the Act bear mention, as they are essential to understanding the way in which the High Court challenges were argued and decided.

1. Inter-Relationships with the Trade Marks Act and the Designs Act

The TPP Act deals specifically with its inter-relationships with the Trade Marks Act 1995 (Cth) and the Designs Act 2003 (Cth). (42) The TPP Act provides that its prohibitions on the use of trade marks cannot be grounds (under the Trade Marks Act) for refusing to register a trade mark, revoking the acceptance of an application for registration of the trade mark, registering the trade mark subject to conditions or limitations, or revoking the registration of the trade mark. …

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