Today, it’s “beware the Marlboro Man.” Tomorrow, will it be “beware the Glenfiddich stag”?
Ireland’s Department of Health recently announced that it is considering adoption of plain packaging requirements for cigarettes as part of an effort to curb tobacco consumption. Ireland’s approach would follow the model set by the government of Australia: disallowing trademarks or logos on packaging—other than the brand name, which may be placed in small type at the bottom of the package.
Ireland is studying this policy in the face of free speech, intellectual property, and personal liberty concerns, evidence that such measures will not contribute to decreased consumption, and indications that such packaging might produce health risks of its own.
WLF recently submitted comments to Ireland’s Department of Health counseling against adopting the Department’s proposed framework and warning of the probable consequences of plain packaging. In its comments, WLF argues that among other negative policy outcomes, plain packaging will lead to a trend towards generic and counterfeit cigarettes. This trend, along with an increased focus on price competition, could reduce the price of cigarettes and as a result, actually increase cigarette consumption, particularly among youths. Further, there is no reason to think this measure will be effective. Ireland’s own Office of Tobacco Control reported that a ban on the open display of cigarettes had little effect on smoking rates.
But perhaps worst yet, there is no reason to think plain packaging will be confined to cigarettes. In an example of why we cannot leave our liberties to the whims of overreaching regulators’ policy preferences, the proposal discusses mandating plain packaging for alcoholic beverages.
More ominously for the alcohol industry, a UK House of Commons Health Committee has included plain packaging as part of a broad consultation on alcohol. Not surprisingly, the makers of Scotch whisky are already protesting. Such is the danger of setting bad precedent: once the door is opened, it is left open for application to the next disfavored product. In today’s climate, it’s plausible that soda, energy drinks, or candy could be targeted next. Indeed it is not unimaginable that the precedent could be extended to red meat, prescription drugs, fast food, and other sugary or high fat content products. The arguments for denying speech rights to alcohol and tobacco manufacturers can easily be used to suppress truthful speech by the manufacturers of each of these products.
Plain packaging threatens not only the tobacco industry or the impacted product; plain packaging threatens the intellectual property rights of iconic and cherished brands in all industries. Rather than threatening intellectual property rights, commercial speech rights, and personal autonomy through ineffective and draconian regulations, governments should rely upon public education programs and increased enforcement of laws that prohibit sales to minors. Further, bans on deceptive packaging would be a far smaller infringement on liberty interests. As WLF says in its comments, “So long as cigarettes remain a legal product, consumers who choose to use them ought to be permitted to receive information that allows them to differentiate among available products based on quality.” This holds true for all legal products and is a truism of any free society.