Word out of the Land Down Under this morning is that Australia is moving forward with a plan to advance that nation’s black market in counterfeit tobacco and seize trademarks worth billions of dollars with a “plain packaging” initiative for all tobacco products. Of course, Australia is not describing its program this way, but those will be two negative outcomes of an initiative for which there is little, if any, scientific support that it will reduce tobacco consumption or advance public health.
Washington Legal Foundation offered comments to the Parliament of Australia’s Senate Community Affairs Committee last February advancing the two points above, as well as many others. WLF also noted that reductions in tobacco consumption can be achieved (and have been achieved here in the U.S.) through means that fall far short of drastic intrusions onto speech rights and the ability of lawful businesses to distinguish their brands from others with package designs which include and emphasize truthful information about the product. We also argued that imposing plain packaging would violate numerous international trade agreements which protect intellectual property rights. Leading trademark lawyers have added their weight to this argument through several WLF legal policy papers (here and here).
There is an undeniable slippery slope in play here as well. As the authors of one of the aforementioned WLF papers wrote:
But why stop at regulating tobacco packaging? Tobacco is a relatively easy target, given the attendant health issues and increasing social stigma associated with its use. How about alcohol? Why not fast food? It is fattening and can contribute to a variety of health issues. Further, the agriculture and livestock industries upon which the fast food industry depends are harmful to the environment. Soft drinks can be bad for your teeth (yes, even diet soda).
The Australian draft law is just that: a draft. It’s unclear whether the draft in its current form will become law. And no doubt if it does become law, years of litigation will follow by those whose property rights have been confiscated. But any other industry whose products are under scrutiny by international health officials and activists should keep a close eye on what develops in Australia. WLF certainly will be.