Kylie Lindorff
Policy Manager
Effective Implementation of FCTC Policies
WCOTH - Singapore
19 March 2012

• Context for plain packaging
• Government announcement
• Key features of the legislation
• Legal challenges

Context for plain packaging

The Framework Convention on Tobacco Control (FCTC) Guidelines for Articles 11 and 13, adopted in November 2008, recommend
Parties consider adopting plain packaging
• Guidelines for implementation of Article 11 (Packaging and labelling of tobacco products)
“ Parties should consider adopting measures to restrict or prohibit the use of logos, colours, brand images or promotional information on packaging other than brand names and product names displayed in a standard colour and font style (plain packaging).”
• Guidelines for implementation of Article 13 (Tobacco advertising, promotion and sponsorship)
“Parties should consider adopting plain packaging requirements to eliminate the effects of advertising or promotion on packaging.”

Rationale i.
‘Smoking is so harmful that no manufacturer
... today would succeed in getting cigarettes on the market’ ii. ‘With restrictions on other forms of marketing, the branding and design of cigarette packs is now the primary means by which tobacco companies communicate brand image.’ iii. ‘Research shows that removing the design elements changes how...packs are perceived, including attitudes to those who smoke that brand and the quality of cigarettes in the packs.’
Source: Tobacco Working Group. Technical report no. 2. Tobacco in Australia: making smoking history. Canberra: National Preventative Health
Taskforce, 2008. Available from: http://www.preventativehealth.org.au/internet/preventativehealth/publishing.nsf/Content/tech-tobacco

Government commitment to introduce plain packaging

In response to recommendations from the
Preventative Health Taskforce,
Commonwealth Government stated it would: i. legislate to mandate plain packaging from 1 January 2012 with full implementation from 1
July 2012* ii. conduct research in 2010 to determine the optimal pack design
Rudd K, Swan W and Roxon N. Prime Minister, Treasurer, Minister for Health. Anti-Smoking Action. [Media release].
Canberra: Office of the Prime Minister, 29 April 2010 [viewed 3 September 2010].
Available from: http://www.alp.org.au/federal-government/news/anti-smoking-action/
* The implementation date was later amended to 1 December 2012

(a) reduce the appeal of tobacco products to consumers

(b) increase the effectiveness of health warnings on the retail packaging of tobacco products

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

• The Australian Government undertook a series of 7 studies between December 2010 and March 2011 (reports at URL below)
• The overall aim was to assess the optimal combination of plain packaging design elements:
– colours for plain packaging;
– font style and font size for brand name; and
– graphic health warning design (size and layout)
• The research sought to identify one plain packaging design
(colour, font type, font size) that would minimise appeal and attractiveness of the pack, whilst maximising perceived harm and the noticeability of the graphic health warnings.
http://www.yourhealth.gov.au/internet/yourhealth/publishing.nsf/Content/mr-plainpack

Key Features
and
Tobacco Plain Packaging Regulations 2011

• The legislation will affect any box, bag or other container that a tobacco product is packed in at the point of retail sale, including cartons available for retail sale.
• It will not affect larger wholesale cartons or shipping containers

• The packs will be a particular shade of drab dark brown in matt finish (Note: NOT olive green!)
• The packs will not have any tobacco industry logos, colours, brand imagery or promotional text other than brand and variant names.
• Brand names will appear on the top, bottom and front of the pack in a standard colour, position, font style and size.

• Packs will be required to be a standard rectangular shape with a standard flip-top opening.
• The dimensions of packs will be limited with a maximum and minimum size stipulated
• Packs must be made of cardboard and be rigid (no soft packs)

• Packs may carry an ‘origin mark’ (to assist with identification of illicit tobacco products) in the form of:
– an alphanumeric code; or
– a covert mark that is not visible to the naked eye
• Alphanumeric code must not:
– Obscure any relevant legislative requirements (eg. GHWs)
– Constitute tobacco advertising or promotion
– Provide access to tobacco advertising or promotion

• Graphic health warnings will be expanded to cover 75% of the front of the pack, up from the current 30%
• All packs must carry the new GHWs from 1 December
2012
• GHWs will be implemented through the Australian
Consumer Law.
Examples of new GHWs:
• Front of pack (75%)
• Back of pack (90%)

• Cigarette sticks will be limited to either plain white, or plain white with an ‘imitation cork’ filter tip
• No branding, other colours or design features will be permitted
• An alphanumeric code will be permitted in a standard position, font size and colour and must not constitute advertising or promotion

• Design features for roll-your-own (loose) tobacco, cigarillos and cigar packaging will be broadly the same as for cigarette packs.
• Drab dark brown
• No logos, colours, brand imagery or promotional text other than brand and variant names.
• Brand names will appear a standard colour, position, font style and size
• All non-cigarette products must be sold in compliant packaging, including individual cigars.

• Individual cigars may have a band as long as it complies with the following:
• Drab dark brown in colour
• Brand, company, business and variant name in specified font style, size and colour
• Compliant bands may be stuck over existing bands

RYO tobacco pouch
Cigarillo/ cigar tin
Bag for multiple cigars
Tube for single sale cigar

• Products may be imported into Australia in noncompliant packaging but must be repackaged into compliant packaging before being offered for retail sale.

• Penalties apply for the manufacture, sale/supply and purchase of non-compliant retail packaging of tobacco products and/or non-compliant tobacco products
• The legislation does not apply to individuals who purchase tobacco products for their personal use, whether or not the products comply with plain packaging requirements.

• 1 January 2012 – legislation and regulations will be in place
• 1 October 2012 – all packs manufactured must comply with plain packaging requirements
• 1 December 2012 – all packs for sale must comply with plain packaging requirements
(original dates were: 20 May 2012 for manufacturing and 1 July
2012 for sale)

Legal challenges

• Countries opposed: Ukraine, Dominican Rep, Mexico,
Nigeria, Colombia, Chile, Honduras, Turkey,
Indonesia, Zambia, El Salvador, Zimbabwe,
Nicaragua, Jordan, and Russia (an observer). Chile opposed in relation to cigars
• Countries non-committal: EU, Japan and
Hong Kong China
• Countries in support: Norway, Uruguay and New
Zealand

• On 13 March 2012 Ukraine submitted a request to
WTO for formal consultation
• A compulsory 60 day consultation period has begun in which the 2 parties will try to negotiate a settlement
• If there is no settlement after 60 days, the Ukraine may request the establishment of a WTO dispute panel to rule on its claim

Philip Morris Asia
• 27 June 2011: Served notice of claim under the 1993 bilateral investment treaty with Hong Kong against Australia, triggering a three month mandatory negotiation period between PMA and the
Australian Government
• 21 November 2011: PMA served a notice of arbitration under the
Hong Kong 1993 bilateral investment treaty

Australian Government Response
• 21 December 2011: ''Philip Morris Asia acquired its shares in
Philip Morris Australia on 23 February, 2011, both in the full knowledge that the decision had been announced by the
Australian government to introduce plain packaging, and also in circumstances where various other members of the Philip Morris group had repeatedly made clear their objections … [which] had not been accepted by the government.''

a. British America Tobacco Australasia Limited
1 December 2011: “ …the TPP legislation is unconstitutional and invalid due to the fact the Federal Government is trying to acquire our valuable intellectual property without compensation” ˆ b. Imperial Tobacco Australia Limited
6 December 2011: “…the Taking of the Plaintiff’s Property Rights and the receipt of the Benefits would constitute an acquisition of property otherwise than on just terms….”
^ (1 December 2011 British American Tobacco) http://www.plainpack.com/news

c. JT International SA (Japan Tobacco)
15 December 2011: “The provisions of the Act…constitute an acquisition of the Plaintiff’s property otherwise than on just terms,…are wholly invalid and are of no effect” d. Philip Morris Limited
20 December 2011: “…the operation of the Act, ….result in an acquisition of the Plaintiff’s property….and do not provide just terms for the acquisition…”
HIGH COURT HEARING SET FOR 17-19 APRIL 2012

“Big tobacco has made it clear that it will fight the
Government…as it has with each step Australia has taken to introduce tobacco control…the Government is not intimidated by big tobacco and is determined to act in the best interests of the health and wellbeing of the
Australian people”
Minister Roxon, 10 November 2011*
* Department of Health Ageing. Senate Passes World First Plain Packaging of Tobacco Legislation. Media release Nov 10, 2011 http://www.health.gov.au/internet/ministers/publishing.nsf/Content/mr-yr11-nr-nr238.htm?OpenDocument&yr=2011&mth=11