Legal Challenges

Australia

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

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:

1. were adopted without due process having been followed;
2. expropriated or deprived the tobacco companies of the property in their trademarks and so should be compensated;
3. were incompatible with EU law including trade rules and the EU Community Trade Mark Regulation; and
4. were not allowed under the EU Tobacco Products Directive.

(Source: https://www.tobaccocontrollaws.org)

France

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,
2016.

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:

1. The ban on using figurative, semi-figurative signs, and logos on packaging of tobacco products was valid because the brand and variant name is still permitted allowing the identification of the product.
2. Plain packaging constitutes an infringement of property rights, but that this infringement is justified in the light of the objective pursued (public health) and because the measure regulates the use of trademarks but does not completely ban them.
3. There was no ‘deprivation’ of property rights.
4. For the same reasons, the Conseil d’État held that the national legislation is a quantitative restriction on the importation of goods but this is in conformity with European Union law because the introduction of such restrictions is permitted where they are justified by a public health objective and the protection of human life. The court held that in this case, the challenged provisions must be considered as unable to do anything other than, over time, reduce the consumption of tobacco. The evidence in the case file also showed that neutral packaging would reduce the attractiveness of tobacco products. The measures were therefore proportionate and justified.

(Source: https://www.tobaccocontrollaws.org)

Norway

Constitutional court

On Nov. 6, 2017, Oslo District Court dismissed an attempt to suspend implementation of 
plain packaging requirements applying to snuff until the outcome of a legal challenge was 
determined. Appeal to Oslo Court of Appeal dismissed Feb. 15, 2018.

European Union

Constitutional court

Tobacco Products Directive adopted April 3, 2014 explicitly states that 28 EU 
countries have the option of implementing plain packaging, a provision upheld on May 4, 2016 by the European Court of Justice as valid when dismissing a legal challenge.