Legal Challenges
To date across the globe, all eight (8) legal challenges against standardized packaging have been dismissed:
Australia |
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World Trade Organization (WTO) |
World Trade Organization dismissed legal challenges on June 28, 2018, concluding that plain packaging was consistent with WTO trade obligations. In 2012 and 2013, Honduras, Indonesia, Cuba and Dominican Republic brought complaints in the World Trade Organization (WTO) claiming that Australia’s tobacco plain packaging laws breached the WTO agreements. The complaining countries argued that Australia’s law breached the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) by failing to provide required protections to trademarks rights and because it is an unjustifiable encumbrance on the use of tobacco trademarks; and the Agreement on Technical Barriers to Trade (TBT Agreement) because it is more trade-restrictive than necessary to fulfill a legitimate objective. (Source: https://www.tobaccocontrollaws.org) |
Bilateral investment treaties (BITs) |
Philip Morris legal claim under bilateral Hong Kong-Australia investment agreement dismissed on 17 December 2015. Philip Morris Asia v Australia Philip Morris Asia challenged Australia’s tobacco plain packaging legislation under a 1993 Bilateral Investment Treaty between Australia and Hong Kong. This was the first investor-state dispute brought against Australia. Philip Morris Asia initiated the arbitration in November 2011, immediately after the legislation was adopted. Australia responded with jurisdictional objections and sought a preliminary ruling on these issues. The tribunal bifurcated the proceedings and on 18 December 2015 issued a unanimous decision agreeing with Australia’s position that the tribunal had no jurisdiction to hear the claim. (Source: https://www.tobaccocontrollaws.org) |
Constitutional court |
Constitutional challenge dismissed by High Court of Australia Aug. 15, 2012. In a consolidation of two cases where large tobacco companies challenged the constitutionality of the Australian Commonwealth’s Tobacco Plain Packaging Act, the majority of the High Court found for the Commonwealth, upholding the constitutional validity of the Act. The Act specifies all of the physical features of tobacco products, including their dimensions, their colour and finish, and the permitted use of trademarks and other marks. In particular, the Act requires uniform “plain” packaging for all tobacco products, consisting of graphic health warnings on at least 75% of the front of the pack and 90% on the back of the pack, with the brand name only to appear in a specified dimension and font, against a specifically chosen drab brown background. The companies claimed that the Australian Commonwealth’s Tobacco Plain Packaging Act constituted an acquisition of their intellectual property without just terms in contravention of s51(xiii) of the Australian Constitution and that it was therefore invalid. The majority of the Court (French CJ, Gummow, Hayne, Bell, Crennan and Kiefel JJ) held that, although the Government had “taken” the property of the tobacco companies, there had been no “acquisition” because neither the Government nor any third party acquired any benefit as a result. (The tobacco companies argued unsuccessfully that the Government had acquired a benefit because it had acquired the use of space on the pack dedicated to public health warnings; or, alternatively, that it had acquired “control” of the pack.) (Source: https://www.tobaccocontrollaws.org) |
United Kingdom |
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Constitutional court |
Legal challenge dismissed May 19, 2016, with appeal dismissed Nov. 30, 2016, and with permission to appeal to the UK Supreme Court dismissed April 12, 2017. In March 2015, the United Kingdom (UK) adopted the Standardised Packaging of Tobacco Products Regulations 2015 (the Regulations). All four multinational tobacco corporations – British American Tobacco, Philip Morris Brands, Imperial Tobacco and Japan Tobacco International – quickly commenced legal challenges in the High Court seeking to overturn the Regulations. These challenges were heard in December 2015 and the presiding judge, Mr Justice Green, gave his ruling on May 19, 2016, the day before the Regulations came into force. There were 17 grounds of legal challenge but for this document, these can be summarized into four main issues. The tobacco companies claimed that the Regulations:
(Source: https://www.tobaccocontrollaws.org) |
France |
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Constitutional court |
(1) Legislation upheld on Jan. 21, 2016 as constitutional by France’s Constitutional Council. (2) Council of State (France’s highest administrative court) dismissed legal challenges Dec. 23, Japan Tobacco International and Others v. Ministry of Health Legal challenges to the plain packaging of tobacco products laws dismissed. On December 23, 2016 the Conseil d’Etat (the Council of State, the highest administrative jurisdiction in France) dismissed six legal challenges that were brought against the tobacco products plain packaging laws. Previously, in January 2016, the Constitutional Council had also upheld the law as in accordance with the constitution, on a referral from members of parliament. In brief, six cases were brought challenging the regulations – four by the tobacco companies, one from the confederation of tobacco retailers, and one from a tobacco paper manufacturer. The Conseil d’Etat dismissed all the claims and held that:
(Source: https://www.tobaccocontrollaws.org) |
Norway |
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Constitutional court |
On Nov. 6, 2017, Oslo District Court dismissed an attempt to suspend implementation of |
European Union |
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Constitutional court |
Tobacco Products Directive adopted April 3, 2014 explicitly states that 28 EU |