Australia’s major victory on plain packaging for cigarettes is something to celebrate
The decision, released on June 9 by the appeals body of the World Trade Organisation that Australia’s plain packaging tobacco control policy is not flouting WTO laws marked the culmination of almost a decade of legal wrangling over this pioneering public health policy.
More importantly, it paves the way for other countries around the world to follow Australia’s example.
In 2012, Australia was the first country in the world to introduce tobacco plain packaging regulations, after acknowledging that the tobacco industry uses packaging both to market cigarettes and to suppress health warnings.
The industry has long recognised the powerful role packaging design plays in attracting consumers and strengthening brand image. A 2017 trade article on cigarette “premiumisation” explained the rationale behind glossy packaging:
Attributes like velvet touch, soft-touch, etching, uplifting and relief can be extended across the surface of the packaging to make the product more impactful and improve customer engagement. The look of the packaging, such as intense metallics by using foil simulation inks, can also give a luxurious effect to cigarette packaging and adds to the products premium feel.
In fact, the “plain packaging” mandated by the Australian laws is anything but. It features full-colour visual health warnings on a drab brown backdrop.
Brand logos, designs, emblems, and slogans are prohibited; brand names of products remain but must appear in a standard font.
The result means tobacco packaging can no longer serve as mini advertisements that make cigarettes appear aspirational and attractive.
The cigarette industry has mounted three independent court appeals to the regulations. First, the Australian High Court lodged a lawsuit against JT International and British American Tobacco.
Next, tobacco firm Philip Morris pursued legal cover for its packaging designs under an existing trade agreement between Australia and Hong Kong.
Finally, the industry lodged a lawsuit through the WTO on behalf of four tobacco-producing countries: Cuba, Honduras, the Dominican Republic and Indonesia.
In 2012 the High Court ruled in favour of the Australian government, and the investment treaty tribunal dismissed the claim of Philip Morris Asia in 2015. The WTO also ruled in favour of Australia in 2018, but the Dominican Republic and Honduras appealed.
That appeal was rejected last week, ensuring all legal challenges to Australia’s plain packaging laws have now been finally and conclusively overruled – more than a decade since the policy was first introduced by the then Prime Minister Kevin Rudd in April 2010.
Plain packaging laws agreed by the WTO’s appeal body are likely to improve public health and are not unfairly restrictive to trade.
The appeal was not anticipated to succeed, so the decision will not come as a surprise. But despite this, legal feuds have become standard practice in the tobacco industry, primarily through international channels such as the WTO.
One reason for this is that the slow and cumbersome legal process can serve as a deterrent to other countries, which may halt the implementation of similar laws until the legal result is known.
Encouragingly, this stalling technique seems to be losing its strength. Despite the outstanding appeal, countries such as the United Kingdom, Ireland, France, Norway, and New Zealand have all pursued plain packaging legislation.
Now, however, lower-income countries can also pursue plain packaging measures with confidence, without fear of falling foul of the WTO.
Australia’s plain packaging law at the time was groundbreaking. But now the tobacco industry has responded with a variety of tactics to exploit loopholes and offset the impact on their brands, meaning that more countermeasures need to be developed by governments.
Once plain packaging was implemented, the tobacco industry quickly trademarked new brands, such as Imperial Tobacco’s Peter Stuyvesant + Loosie, which contains 21 cigarettes instead of 20, and promotes the bonus cigarette in the name.
The plain packaging laws of Canada, enacted in February 2020, directly control the cigarette size and shape themselves. For example, slim cigarettes targeting young women who associate smoking with slimness and fashion are prohibited by the law.
Widespread plain packaging could also help to reduce the tobacco market upsurge through social media influencers. A tobacco pack covered in gruesome disease imagery does not inspire content on social media.
The WTO upheld Australia’s plain packaging laws because the government had convinced public health research to demonstrate the positive impact of plain packaging on public attitudes to smoking.
Seen in that light, this decision is not just a public health win. It’s also an encouraging sign that evidentiary policies can defeat even the deepest corporate pockets.