UK Lawmakers Approve Plain Cigarette Packaging Legislation

19 March 2015

The UK’s House of Lords approved regulations mandating plain packaging for cigarettes on Tuesday, just days after the House of Commons backed the measure. The move makes the United Kingdom the latest country to introduce such a policy, following Ireland, Australia, and Uruguay. 

The UK regulations involve standardising the packaging in which cigarettes are sold, such as by limiting the packages to a uniform brown exterior and white interior. The same applies to hand rolling tobacco, according to a transcript of the House of Lords debate, though cigars and pipe tobacco would not be included.

Furthermore, the policy allows only “specified text” – such as the brand – in a standard font, and limits the packages to set shapes. The regulation does not change any of the existing labelling policies, including those regarding health warnings.

The measure passed in London this week will enter into effect in May 2016.

Growing trend

The UK decision came fast on the heels of Ireland’s own approval of similar legislation, which is set to be fully implemented by 2017.

One of the countries at the forefront of the international plain packaging debate has been Australia, which was among the first to approve such legislation back in late 2011. The policy took effect a year later in order to give tobacco companies time to make the necessary changes in their production methods. (See Bridges Weekly, 21 March 2012)

Uruguay had already enacted regulations in 2009 that require health warnings to cover 80 percent of each cigarette package, prompting tobacco giant Philip Morris to file a legal claim in 2010 under Uruguay’s bilateral investment treaty with Switzerland. That case is being heard at the World Bank’s International Centre for Settlement of Investment Disputes (ICSID), with the result still pending. (See Bridges Weekly, 10 March 2010)

Since its introduction, Canberra’s plain packaging measure has also come under fire across a range of legal fronts, ranging from suits filed by tobacco companies under bilateral investment treaties to state-to-state disputes at the WTO.

Despite the above-mentioned legal challenges, various other countries are weighing whether to follow suit with their own plain packaging measures. Norway is said to be conducting its own consultations on potentially introducing such a policy, while France, New Zealand, and Turkey are also among those considering enacting their own rules.

Backers of the new measures introduced in the UK and Ireland also say that these are legally sound, and government officials have vowed to defend them in court if necessary.

The EU, for its part, approved last year a revision to its 2001 tobacco directive that aims to improve the operation of the 28-nation bloc’s internal market for tobacco products while also meeting public health objectives. Officials explained at the time that new scientific evidence – such as the implication of health warnings, or the use of flavourings – as well as the introduction of e-cigarettes and other new products made it essential to update the rules.

While the 2014 EU tobacco directive does allow for some space for branding, it does also give member states the option of going further and implementing plain packaging policies if they wish to do so.

EU member states have two years from the directive’s entry into force to bring their national legislation in line with the directive’s terms. However, given the potential lag time in selling off all existing stock that complies with the earlier 2001 directive, all products with more than three percent market share in the EU will be allowed a phase-out period of four years.

Public health

Anti-smoking and cancer groups have lauded the decisions made in London and Dublin, highlighting the precedent the new measures will set.

“As more countries implement plain packaging as well as tobacco exemptions in trade agreements, the world will be able to reverse the tobacco epidemic and reduce the estimated 1 billion tobacco-related deaths this century,” said Action for Smoking and Health, a US-based anti-tobacco group, in a statement on Tuesday.  

UK officials have cited the apparent success of the Australian example, including recent statistics from Cancer Council Victoria, a non-profit charity organisation, which found a dramatic drop in the prevalence of smoking in the country, as reason to adopt its own regulations.

Opponents, however, have noted conflicting data from other sources regarding the use of tobacco products, while also suggesting that tax hikes could be a factor in any smoking decreases in Australia. Some have also warned of the possibility of illicit tobacco trade in white cigarettes, as well as the ease of copying the plain packs, which could make it easier for illegal versions to enter the supply chain.

“Frankly, plain packs are little more than a smuggler’s charter,” said Lord Naseby during Tuesday’s House of Lords debate, unsuccessfully tabling an amendment to block the regulation.

The politician, who withdrew his amendment after seeing it would not survive a vote, has also warned of the possibility that industries outside tobacco could be affected, while saying that the May 2016 start date does not give enough time to make supply production adjustments.

WTO result forthcoming

Over in Geneva, the Australian measure is facing legal challenges at the WTO from five of its trading partners – Cuba, Dominican Republic, Honduras, Indonesia, and Ukraine – who have charged that the measure is unnecessarily trade-restrictive. (See Bridges Weekly, 1 May 2014)

Australia’s Plain Packaging Act, the complainants say, effectively undermines the protections provided to trademarks and geographical indications under WTO rules, making it difficult for their premium products to stand out in the marketplace and thus hindering fair competition.

The five countries have referred in their respective complaints to provisions in the WTO’s rules on intellectual property and technical barriers to trade.

Australia, in turn, has said that the measure is necessary and justified under trade rules on public health grounds, given the need to tackle increases in cancer levels and other smoking-related problems. Canberra says that the Plain Packaging Act has already shown benefits in this area since its implementation.

A WTO dispute panel is reviewing the five complaints jointly and is expected to issue a ruling in the latter half of 2016. The outcome could then be subject to appeal by any of the parties involved, which would extend the timeline further.

In the interim, the topic has been repeatedly raised within other WTO committees, which sources say is unusual given that dispute settlement proceedings are still ongoing.

At a meeting last month of the WTO’s TRIPS Council, which is tasked with administering the organisation’s Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), the Dominican Republic reiterated its longstanding concerns over the proliferation of plain packaging polices elsewhere, even before the release of a dispute settlement ruling.

The five WTO members that have challenged the Australian measure have asked that other members considering their own regulations wait until dispute proceedings are completed – a stance that has been opposed by Canberra, which has also said that it is inappropriate to comment on the ongoing case.

Other products to follow?

As the plain packaging debate continues over tobacco products, the possibility that this trend could spread to other industries – such as alcohol or unhealthy foods – has also been raised in public debate.

Indonesian officials, for instance, have already proposed legislation that would require the use of either plain packaging or health warnings to limit the use of alcohol.

Earl Howe, the UK’s Parliamentary Under-Secretary of State for the Department of Health, said on Tuesday that his country’s government has “no intention to extend standardised packaging to any product other than tobacco,” citing tobacco’s “uniquely harmful” nature as reason for treating it differently from other consumer products.

ICTSD reporting; “Plain tobacco packs get go-ahead in UK,” THE AUSTRALIAN, 17 March 2015; “Plain packaging for cigarettes signed into law in Ireland,” IRISH TIMES, 10 March 2015; “UK first EU country to adopt plain packaging for cigarettes,” EURACTIV, 17 March 2015; “Junk Food and Booze Could Follow Tobacco in Plain Pack Push,” BLOOMBERG BUSINESSWEEK, 23 January 2015.

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