Plain cigarette packaging is Australian legislation that requires cigarettes to be sold in plain packages throughout the country from December 2012.[1] Branding and advertising will be replaced by logo-free, drab dark brown packaging with health warnings. The brand name and variety of the cigarette will be printed on the front of the packaging in a plain white typeface.
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Instead of their own packaging, the legislation will force cigarette companies to sell their cigarettes in a logo-free drab dark brown packaging from December 2012.[2]. Government research found that brown is the least attractive colour, particularly for young people.[3] With the plain packaging and tax increases[4] the Australian government aims to bring down smoking rates from 16.6 per cent in 2007 to less than 10 per cent by 2018.[5]
On 24 May 2011 Cancer Council Australia released a review of the evidence supporting the introduction of plain packaging to reduce youth uptake.[6] The review had been conducted by Quit Victoria and Cancer Council Victoria. The review includes 24 peer-reviewed studies conducted over two decades, suggesting that packaging plays an important role in encouraging young people to try cigarettes.[7]
In August 2010, Phillip Morris International, British American Tobacco and Imperial Tobacco formed the Alliance of Australian Retailers, which commenced a multimillion dollar campaign against plain cigarette packaging. The Big Tobacco campaign focused on grassroots advocacy (astroturfing), ostensibly on behalf of small business owners.[8] When the funding source of the campaign was made public, large retailers such as Coles and Woolworths quickly withdrew support for the campaign.[9][10] The tobacco companies subsequently hired a Public Relations firm to oversee the campaign.[11]
In May 2011, British American Tobacco launched a media campaign suggesting that illicit trade and crime syndicates would benefit from plain packaging.[12] BATA CEO David Crow threatened to lower cigarette prices in order to compete, which he claimed could result in higher smoking amongst young people.[13] Mr Crow later admitted he would tell his own children not to smoke cigarettes, as they are unhealthy.[14]
The BATA campaign is largely based on a report from Deloitte. Several of the claims contained in the report related to border protection, and have since been publicly refuted by customs officials, and the report itself admitted that it had relied extensively on unaudited figures supplied by the tobacco industry itself.[15][16]
In June 2011, Imperial Tobacco Australia launched a secondary media campaign, deriding plain packaging legislation as part of a Nanny state[17]
In June 2011 Phillip Morris International also announced it was using investor state dispute settlement provisions in the Australia-Hong Kong Biliateral Investment treaty (BIT) to demand compensation for Australia's plain packaging anti-smoking legislation, despite the fact the legislation is non-discriminatory and addresses a significant public health problem.[18] In response, Health Minister Nicola Roxon stated that she believed the government was "on very strong ground" legally, and that the government was willing to defend the measures.[19]
In November 2011, British American Tobacco announced that it would challenge the laws in the High Court as soon as they gained royal assent.[20] Immediately following the passage of legislation on 21 November 2011, Philip Morris announced it had served a notice of arbitration under Australia's Bilateral Investment Treaty with Hong Kong, seeking the suspension on the plain packaging laws and compensation for the loss of trademarks.[21] Allens Arthur Robinson is representing Philip Morris. [22]
The Cancer Council of Australia hailed the passing of the legislation, stating, “Documents obtained from the tobacco industry show how much the tobacco companies rely on pack design to attract new smokers....You only have to look at how desperate the tobacco companies are to stop plain packaging, for confirmation that pack design is seen as critical to sales." [23] The World Health Organization's director for the Western Pacific also congratulated Australia and stated that all countries and areas in the Western Pacific should follow Australia's good example. [24]
Speaking on Radio Australia, Don Rothwell, professor of international law at the Australian National University, noted that Philip Morris was pursuing multiple legal avenues. The Notice of Arbitration under the bilateral investment treaty between Hong Kong and Australia has a 90 day cooling off period after which the case would most likely be sent to the International Centre for Settlement of Investment Disputes in Washington. He stated that Philip Morris was most likely aiming for the Australian Government to back down, or failing that, to sue for compensation. He said the questions to decide are whether the legislation means that Australia would acquire property by the imposition of these rules and if this legislation is a legitimate public health measure.
Professor Rothwell noted "...the growing recognition of the legitimacy of public health measures of this type." Professor Rothwell estimated that the legal cases, including any case before the High Court, would take up to a year to decide. [25] However, in the United States, Judge Richard J. Leon ruled that graphic health warning labels "clearly display the government’s opinion on smoking" which he said "cannot constitutionally be required to appear on the merchandise of private companies." He ruled that these warnings would unfairly hurt their sales, that the warnings were crafted to provoke an emotional response calculated to quit smoking or never to start smoking. This, the judge ruled, was "an objective wholly apart from disseminating purely factual and uncontroversial information.” This finding may be appealed. [26][27]
The Associated Press noted that Philip Morris took "less than an hour" to launch legal action against the Australian legislation. It also stated that Australian legislation followed the lead of Uruguay which requires that 80 per cent of cigarette packages is devoted to warnings and Brazil, where cigarette packages display "graphic images" of dead fetuses, haemorrhaging brains and gangrenous feet. [28]
The British "Daily Mail" stated that the Philip Morris law suit could cost the Australian government billions. It also noted that the Australian law is being closely watched by other governments in Europe, Canada and New Zealand, that In 2005 the World Health Organization urged countries to consider plain packaging and that Bhutan had banned the sale of tobacco earlier in 2011. [29]
"3 News", New Zealand reported that New Zealand is actively considering similar plain packaging laws to Australia but that such a law could be a big headache in negotiating a free trade agreement with the United States. [30] Xinhua.net (China) said the New Zealand Associate Health Minister Tariana Turia congratulated the Australian health minister, noted that tobacco labelling rules have long been harmonised between Australia and New Zealand and looked forward to New Zealand following suit. [31]
In reporting Philip Morris's legal action, "The Times of India" noted that the plain packaging legislation is being closely watched by other countries and that tobacco firms are worried the Australian plain packaging legislation may set a global precedent. [32]
In April 2011, Minister Roxon released an exposure draft of plain packaging legislation with an expected start date of 1 July 2012.[33] Australian newspapers reported that the legislation was likely to pass despite concerns from the Opposition. It was suggested the Opposition resistance to the legislation was due to their continuing acceptance of funding donations from tobacco companies.[34]
On 31 May 2011 Liberal leader Tony Abbott announced that his party would support the legislation, and would work with the government to ensure the legislation is effective.[35]
Minister Roxon introduced the plain packaging bill to Parliament on 6 July 2011[36], and it passed through the Lower House on 24 August 2011[37]. The legislation passed the Upper House on 10 November 2011 with the amended start date of 1 December 2012[2]. Due to the changed start date the legislation returned to the Lower House before being given royal assent.[38] Legislation finally passed on 21 November 2011.[39]