Plain packs: tobacco industry bares its butts to bluff Rudd

Simon Chapman writes: 

Kevin Rudd has foreshadowed an imminent major announcement about prevention. The "P" word has featured in almost every speech on health since Labor took office and the three-volume Preventive Health Task Force report provides a wish list of policies that are causing high anxiety in the junk food, alcohol and tobacco industries. In other words, policies that move beyond "prevention" being a motherhood confection to be liberally sprinkled over political health-speak, and into the realm of making a difference.

A key, cost-free recommendation in the tobacco sub-committee’s report is that Australia should become the first country to require "plain", unappealing cigarette packs . Packs would all look the same, except for the garish health warnings, being distinguished only by their brand names.

Cigarettes, which kill half of long-term users, would thus look like prescription drug packs (that save lives), which have historically come in plain dull boxes, with brand name, lots of words about dosage and contraindications, and stored out-of-sight in the dispensary. If ever there was a symbol of a government’s serious intent about prevention, a move to stop cigarette packs looking like fashion accessories would take some beating and would quickly spread globally, as has every piece of tobacco control legislation.

The global tobacco industry is packing death over the proposal and local industry leaders will be humiliated if it gets up. Philip Morris has launched a dedicated website attacking the proposal. It is a site of such abject amateurishness as to make anyone wonder about the calibre of today’s crop of tobacco industry issues management staff. Their strategists have concentrated their attack around four arguments, which range from the very silly, to the very, very silly.

First, vox pop videos of retailers (including a bouncy one who breezes "I’m for everybody being healthier") argue that plain packs will cost the government and retailers money. That can only mean that they fear sales will go down as a result -- precisely the whole idea, fellas! As the cover story on the tobacco industry trade magazine Tobacco Journal International put it very nicely in 2008: "Plain packaging can kill your business."

Next, because all the brands will look the same, it’s argued that this will confuse customers and retailers. Come again? The packs will still have brand names such as Marlboro or Alpine on them, smokers will still be able to ask for their brands, and unless some shopkeepers have IQs lower than it takes to grunt, they will be able to read the brand name on the pack like they do now.

Next, they argue that there’s no evidence from anywhere that plain packs will lower sales. No country has introduced it, so there’s no evidence it works. Aside from me thinking they do protest rather too much about a plan they say will not affect sales, the intellectual force of this argument would kill all innovation. By this argument, no country would have ever introduced health warnings, random breath testing, seat belts, or indeed anything for the first time.

Despite knowing that no company has ever received a cent in compensation for the massive appropriation of the pack for health warnings (Uruguay leads with 80% front and back), the big stick the industry keeps warning governments that they hold behind their backs is the threat of legal action and massive compensation for trademark violation.

This is desperate bluff. International public health groups have marshalled extensive legal expertise to examine such industry claims. In Australia for example, High Court rulings have established that the sort of "acquisition" where the government merely prevented the use of trademarks in packaging, would not constitute an "acquisition" of property as described in s.51(xxxi) of the Constitution as it would not provide any benefit to the government that ordered the "acquisition" other than reduced sales.

Similarly, the industry blusters that plain packaging would violate terms of the World Trade Agreement. But it has made the same forlorn arguments for years that bans on words such as light and mild contravene WTO law even though such bans now operate in dozens of nations, again with no compensation paid.

It also says that the packs would violate international Trade Related Aspects of Intellectual Property Rights (TRIPs) law. Again, this is nonsense as there is nothing in TRIPS that requires WTO Members to permit trademark owner s to use their trademarks. Instead, TRIPs prevents third parties from using others’ trademarks -- not at issue here.

Simon Chapman is professor of public health at the University of Sydney