Australia’s Newest Anti-Tobacco Initiative

Australia's Plain Cigarette Packaging

Australia's Plain Cigarette Packaging. Photo credit: abc.net.au

On June 21, United States health officials unveiled their newest anti-tobacco campaign: a mandatory graphic warning label to encompass fifty percent of each cigarette pack’s surface area. The United States newest effort follows suit to forty other countries leading the way in progressive anti-tobacco campaigns. And in an effort to push anti-tobacco campaigns even further, the Australian government recently announced its plan to introduce plain packaging for cigarettes — an extra step in their already exemplary path. Under the new legislature, tobacco products would be sold in plain green packaging, limiting the brand recognition. The law will be formally introduced in July, and is expected to be passed and go into effect within a six-month transition period – requiring new, plain packaging by 2012. However, uproar of protests from tobacco companies and even members of the United States Congress has greeted news of the law, as they contend that it could be a breach in Australia’s international trade obligations. The conflict between proponents and opponents of the bill rouses the age-old question: Should we place priority over capital interests or the health and well-being of our public.

Each year, an estimated 15,000 Australians die prematurely of illnesses linked to tobacco-use. And each year, roughly $31.5 billion Australian dollars are spent on healthcare and lost productivity associated with smoking. Australia has been a leader in anti-tobacco movements, mandating graphic warning labels on cigarette packs—which the United States has only recently mandated—since 2006. Australia also has some of the world’s highest cigarette taxes. In an article in the Tobacco Labelling Resource Centre, it is claimed that a tax increase is expected to raise the price of a pack of 30 cigarettes by around A$2.16, hiking the cost of a pack up to approximately A$15. Research has proven that tax hikes on cigarettes has proven success in decreasing the number of cigarette users, which will bring Australia closer to its goal: to decrease the percentage of adult cigarette users to 10% by 2018. Coupled with the new, plain packaging legislature, consumption of cigarettes can be expected to drop even further.

Australia’s current legislature allows branding of cigarette packs, but mandates a gory warning label to be printed across the front and back. By revoking the right to a logo and brand image (trademarks) on cigarette packs, Australia has riled the attention of cigarette superpowers like Philip Morris and the British American Tobacco Australian (BATA) company. Philip Morris has taken legal steps to prevent the legislature from passing, claiming it is breaching a 1993 Bilateral Investment Agreement between Australia and Hong Kong, which seeks to ensure that companies do not face discriminatory treatment under investments made in one another’s territories.

However, an interesting point was made in a Canberra Times article, claiming Philip Morris is using a tactic called “treaty shopping.” The use of this tactic explains why the U.S. based cigarette company is drawing on a treaty between the Hong Kong based Philip Morris and Australia’s government. By drawing upon the Hong Kong-Australian treaty, Philip Morris has a somewhat legal claim to halt the plain packaging initiative. Alternatively, Philip Morris’ strenuous legal efforts—by resorting to a treaty between its China-based branch—support the theory that plain packaging will prove successful in cutting the percentage of smokers in Australia.

In regards to the legality of Australia’s newest anti-smoking campaign, India recognized a measure in Article 8 of the TRIPS Agreement focusing on promoting health objectives. According to the clause, “Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition,” with the caveat that those measures be “consistent” with the Agreement’s provisions. Because research has proven that people buy tobacco because of the addictive habit but also because of the attractiveness of colors and trademarks, Australia should have the legal foundation to proceed with its newest initiative, despite the legal roadblocks presented by Philip Morris.

In addition to questioning the legality of the proposed legislation, cigarette companies have argued that by revoking the rights to a trademark on products sold in Australia, the companies will suffer financially by a surge in the percentage of counterfeit cigarette sales. According to the article, “Australia Announces Plain Packaging,” the cigarette industry already loses 12% of profits to criminal black markets. Most important, in this argument, is the fact that the new legislature will impede on tobacco companies’—like any businesses’—intellectual property. According to a letter from the International Trademark Association directed to the [Australian] Senate Standing Committee on Community Affairs, “For one famous tobacco trademark alone the market value has been estimated at over $40 billion.” This triggers the rhetorical question: Are 15,000 Australian lives worth $40 billion?

It is clear that Tobacco companies like Philip Morris are concerned about the effects plain packaging will have on business, which is why they have alluded to the treaty between Hong Kong and Australia. According to the Canberra Times, although it seems unlikely that Philip Morris will succeed in their legal battles, the law suit will cost taxpayers in arbitration fees, leading to a waste of government resources. Clearly, the tobacco companies’ capitalist interests have taken precedence over the welfare of the Australian people, as evidenced by the legal battle they are waging against the Australian government despite the [unnecessary] financial setback it will cause.

By proceeding with the plain packaging legislature, Australia will pave the way for other countries in the fight against tobacco-use. In the years to come, when countries like the United States follow in the footsteps of their progressive allies, the lives that could be saved by this simple measure could be that of your neighbor, a close friend, or maybe even a relative. By adjusting the marketing of cigarette packs, the Australian government will be able to save lives. Their priority is clearly with the people.

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