Plain packaging receives a “no” from the European Parliament

By 12 November 2013 23

Plain packaging mouth cancerAs already reported several times on this blog (see here, here and here),  plain packaging of tobacco products, i. e. the requirement to remove or substantially reduce the appeal of the brand on the packaging of cigarettes and other tobacco products, remains a hot topic. It is part of health law, but has some implications for trademark law too: cigarette manufacturers are prevented to use their protected logos and trademarked colors.

Australia was the first (and remains the only?) country to mandate plain packaging. Its law was challenged before the High Court of Australia for a breach of the constitutional protection of property (see my summary When plain packaging becomes a matter for the judges). It is now challenged before the World Trade Organisation by five countries (including Ukraine and Honduras).

In the meantime, the plans to introduce rules requiring cigarette packs to use standardised labels without any branding seem to stall or be delayed, at least in the UK, New Zealand, Norway and South Africa (see a July 12, 2013 article in The European Voice, here).

In Europe, the debate on plain packaging took place at the occasion of the Revision of the Tobacco Products Directive 2001/37/EC. The draft directive was published by the European Commission in December 2012  (see here the legislative documents and studies). The preparatory materials include “a review of the science base to support the development of health warnings for tobacco packages” (study by Sambrook Research International for the European Commission). For those who like horrors stories, the appendix 6 (p. 141 and ff) of this study lists 42 pictorial warning used to convey negative messages about smoking under the topics: smokers die younger, smoking clogs the arteries and causes heart attacks, smoking causes fatal lung cancer, smoking is highly addictive, smoking can cause a slow and painful death, smoking can damage the sperm and decrease fertility, smoking when pregnant harms your baby, etc. It is instructive to read the detailed recommendations regarding the key design parameters of health warnings and their optimum specification. The key parameters of importance are as follows:

  • “Size – optimally 100% and at least 50% (excluding borders) of the total facial area.
  • Colour pictures used in all warnings together with short easily understood text messages that are clearly linked to the graphical image.
  • Location – pictorial + text warnings should preferably be used on both sides, and as a minimum requirement on the front of packs.
  • The warning should be hung from the top of the pack to maximise visibility. For packs that have a front opening mechanism, front warning should be hung from the ‘cut line’ (to avoid the warning being severed when the package is opened).
  • Toll free quit line number on every pack – ideally this should be separate from the warning to avoid reducing the size (and impact) of the pictorial within the warning.
  • Plain packaging – using an unattractive standardised colour with the removal of logos / brand images and associated colours, with brand names in a standardised colour (black) and font size.” (see executive summary, p. 1)

Plain packaging unborn babiesOn October 8, 2013, the European Parliament, in plenary session, rejected an amendment that would require plain packaging. It also voted to adopt rules requiring the health warnings to cover no less than 65% of the front and the back of the packs. It thus appears that the rules adopted so far only fit in part with the “scientific” recommendations on labelling and packaging.

Here are my questions:

- Where do we stand in the legislative process and what can we expect in the next months?

- Do you think the requirements of plain packaging and the rule relating to the size of the warnings are a true “invasion on intellectual property rigths” that is not compatible with existing rules on IP? What is the best argument for those opposed to plain packaging?

- What is your view on the argument that such rules would constitute an illicit “encroachment on the fundamental right of property”? Is there another fundamental right involved in this debate and how can it be affected by the rules now under consideration at European level?

Thanks for summarizing the situation after the vote at the European Parliament and for sharing your thoughts!

You can go also beyond the IP-related  arguments. For instance, there is an interesting view about the type of approach followed by the European Commission in drafting the proposed Tobacco Products Directive. According to A. Alemanno, Prof. of EU law at HEC Paris (see here), the Commission follows a “nudge” approach which fits with “soft or libertarian paternalism“: according to such approach, “the goal of public policy should be to steer citizens towards making positive decisions as individuals and for society while preserving individual choice“. Quite interesting to reflect on the public policy that best fits with the objective of fighting the smoking effects: should tobacco products be prohibited, at least in certain areas (smoking bans)? should the sole measure be advertising bans? what about the use of tax measures (high excised duties)? The focus now is on reducing the attractiveness of the brand at the point of sale (on the packaging). It is not about increasing the cost for smokers, but about the image of smoking generated when the decisive act of buying is made.  Who said that money is not all in the course of trade?

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23 Responses to Plain packaging receives a “no” from the European Parliament

  1. Jean-Sébastien Rombouts 25 November 2013 at 00:11 #

    As provided by Article 114 – 1 of the Treaty on the Functioning of the European Union, the matter of “Tobacco and related products: manufacture, presentation and sale” is dealt with according to the “Ordinary Legislative Procedure (ex co-decision procedure), which gives the same decision power to the Parliament and the Council. As such, the revision proposal will now go to the Council as it was amended by the Parliament. Indeed, Linda McAvan has now a mandate to start negotiations with the Chair of the European Council, in order to find an agreement and adopt the Tobacco Product Directive (TPD) as revised. As such, in the next month (even days), we can expect an agreement between the Parliament and the Council, which would lead to the adoption of the TPD. If it is adopted, it will enter into force, as modified, in 2015-2016.

    I think the best argument the tobacco manufacturers can invoke is a violation of their Trademark, which would be illegally appropriated by their governments. This consists in a breach of their Intellectual Property Rights, as their property of the cigarette packs is taken.

    Plain Packaing is, according to me, compatible with the TRIPS agreement. Indeed, Article 8 of this international agreement provides that “Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.” The whole debate goes on about the necessity of plain packaging for “protecting public health”. As smoking leads to the death of 1-in-ten adults worldwide, (http://www.oecd-ilibrary.org/sites/9789264183896-en/02/05/index.html;jsessionid=97t37ei8gnkj.x-oecd-live-02?contentType=&itemId=/content/chapter/9789264183896-24-en&containerItemId=/content/serial/23056088&accessItemIds=/content/book/9789264183896-en&mimeType=text/html), and since studies show that plain packaging can indeed reduce considerably the number of smokers (http://www.neurope.eu/article/plain-packaging-encourages-smokers-quit-study), the equation is easily solved according to me.

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  2. Darya Shatova 21 November 2013 at 00:46 #

    For the past couple of years, and in line with what is happening at the European level, Belgium has been moving towards a tougher regime concerning tobacco products. A bill of law has been submitted by MP Catherine Fonck to the Chamber of Representatives on the 2nd of May 2011 aiming to introduce plain packaging for tobacco products as of 2013. We can therefore expect the issue of plain packaging to come into the spotlight in the next few months.

    I think ‘plain packaging’ and the presence of ‘warnings’ on the package are two issues that must be discussed separately.

    In my opinion, the latter does not necessarily invade IPRs since a warning, whether textual or pictorial, can coexist with the presence of the TM on the package. It is, at the very least, an obligation of good faith of the producer to keep the consumer informed about the possible negative consequences.

    As for plain packaging, it is a clear invasion on IPRs since it makes the product lose distinctiveness and protection from counterfeiting, those being the main reasons why IPR owners trademark their products. In other words, plain packaging makes the existence of IPRs on the product pointless. I do therefore believe that imposing plain packaging would constitute an illicit encroachment on the fundamental right of property because it is an equivalent of expropriation for IPR owners. In fact, imposing plain packaging would be a huge blow to legal certainty and the rule of law, notably for businesses that have trademarked their tobacco products in accordance with the national/European IP law. It would also constitute an abusive restriction on trade, which is declared to be free both in Belgium and Europe.

    Furthermore, I do not believe that removing all trademark logos/colors from cigarette packaging is a solution to reduce smoking. A well-visible health warning has a sufficient dissuasive effect. It’s up to the consumer to make an individual choice on that basis: to smoke or not to smoke.

    This brings us to the freedom of expression issue. Indeed, consumers of tobacco products are often attached to a particular brand of cigarettes and they must be offered the possibility to easily distinguish “their” brand from the others on the market, which is obviously facilitated by the presence of the TM logo and colors on the package. Thus, consumers have an interest in the distinctiveness of the products on the tobacco market, which is now at risk due to plain packaging. Consumers also have an interest in keeping tobacco products safe from counterfeiting to preserve a guarantee of origin, which also serves as a promise of quality of the product.

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    • Alain Strowel 28 November 2013 at 09:17 #

      Thanks for pointing to the development at Belgian level. I also like your clear argumentation about the difference between the requirement of warnings and plain packaging. The text flows well! But you also have deviated a bit from the questions raised in the post.

  3. Raphaël Boucquey 20 November 2013 at 23:20 #

    Status of the European legislation (adoption of a new directive on Tobacco products):
    Directive 2001/37/EC is to be replaced by a new directive on tobacco products.
    The commission has already made its proposal, which has been accepted by the Council. The council has laid down different propositions, part of an agreement.
    The Public Health Commission of the EP has gathered and reacted to this proposal. Basically, the purpose is to lower the attractiveness of tobacco products as regards the flavors and packagings and ensure tobacco consumers are aware of the dangers attached to cigarette.
    The Parliament, in a plenary session voted in favor of this legislation, though it removed all the provisions about the packaging, and gave a member of parliament (namely Linda MacAvan) the mission of negotiating with the EU ministers in charge of this field.
    As soon as the draft directive, in its current version will be accepted by the Council and the European parliament, the directive will be enforceable. If the directive is adopted, it will be the duty of the member states to transpose it into positive law within 18 months.
    Tobacco regulation and Intellectual Property Rights:
    In theory, trademark law should aim at preventing such intervention of legislative power in the field of Tobacco products: trademark is useful to differentiate products and inform consumers about the product they are buying, and all the implied feelings that are conceived when purchasing one brand instead of another, due to marketing efforts of the company.
    However, this right for a free differentiation of the product is to be considered more carefully with products such as the cigarettes which are known for their impact on the health of consumers. The regulating power should by all means make a balance of the interests between the economical profits of tobacco producers and cigarette-sellers (taking into account the huge amount of taxes generated by the selling of tobacco) and the health and well-being of the society and particularly the tobacco-consumers (taking into account the amount national health services have to spend in order to cure illnesses caused by Tobacco consumption).
    Concerning trademark law, the European legislators should be careful regarding the distinctiveness of the products: most of the cigarettes look alike and the only difference between them is the logo on their package. If the distinctiveness of the products is not ensured any more, the only thing that could be protected by intellectual property law is the trade name. The last thing differentiating one product from another would be this trade name and it would be an infringement of the companies’ right to use the trademarks for which they have registered.
    The issue arising next is the infringement of the fundamental right to property: impeaching the companies from using their names and logos as advertisements for their product is leading toward a deprivation of all the previous investment in public relations and advertisement.
    The economic interests of multinational companies cannot be abolished on the ground that the health of the citizens is at stake, though it should not prevail. An important equilibrium is to be found, and I’m not sure that plain packaging is the best way to set up a proper balance.
    Nevertheless, I think that the property rights of the companies can be limited by the existence of a higher interest, but only under strict conditions (those required, for example, in the ECHR: legality, legitimacy and proportionality).

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  4. Marie Miron 20 November 2013 at 22:58 #

    1°/Right now, the plain packaging of tobacco products is part of the health law and it has implications for trademark law. There are plans to introduce rules requiring cigarettes packs to use standardised labels without any branding. In europe, the debate about this topic took place at the occasion of the Revision of the Tobacco Products Directive 2001/37/EC. The draft directive was published by the European Commission in December 2012.
    2° Yes, it is. It’s a breach of their intellectual rights because they are not able anymore to display their brand, it would be an invasion on their trade marks. It is a restriction of their rights.
    3° I do not think that it is illicit, I think that it is legitimate. There are 2 fundamental rights at stake and one of them has way more value than the other, in my opinion. There is a right to health. In such cases, intellectual property rights must come second. But I am not sure that trying to make the name of a brand disappear of the package will prevent smokers from smoking because they are not attracted by packages but more by what’s inside. I think this IP issue is just a way to avoid the real problem : people pay for an unhealthy product. This product is legal and can be found easily everywhere by almost everyone, that’s the real issue here.

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  5. Eliott Delcroix, Chloé Ponsart, Eleanor Coets 20 November 2013 at 22:39 #

    Concerning the adoption of the “Plain packaging law”, Australia is ahead of us since 2012. It is the first country in the world that has enacted a law on that matter. It means that all tobacco products must be sold in standadized drabs. Logo and promotional texts are to be removed and the size of the brands on the package is reduced.
    Since the adoption of the law by Australia, EU is considering the same idea, as it has been proven to be a good way of reducing the attractiveness of tobacco packages. It also represents a real serious challenge against tobacco industry.
    On European level, the decision was taken to revise the TPD (Tobacco Products directive) and to impose plain packaging. But the idea was soon abandonned before the revision could take place, as the European Parliament voted against that proposition (july 2013). The European Union decided to leave that matter to the national governements, and since then, a lot of countries have been thinking about enacting laws in that sense. But nothing concrete has been done yet (in EU : UK, Ireland, outside EU : South Africa for example).
    That is why today, Australia remains the single country that has taken a clear position on that issue.

    The requirements of plain packaging and the rule relating to the size of the warnings may be seen as “a true invasion on intellectual property rights” because tobacco companies would be forced to use an unattractive standardised color, they would have to remove their logos or brand images and associated colors and their brand names have to be in a black. In this way, the brand loses its specificity, its image. By forcing the brands to all look the same, tobacco companies lose their possibility to make some advertising by being different on the packaging.
    I am not saying that I’m in favor of advertising for smoking, but smoking companies have, like other companies, the right to conduct business and thus, to make their own publicity. The health warnings are already compulsory. Besides this, smoking companies should be free to set up their market as they want.

    Plain packaging does not encroach on the right of property : after all, whatever the packaging, the consumer is still free to use the product and the distributor to benefit from its sale (in this particular case, a change in packaging does not prevent the consumer from smoking or the distributor from selling a pack of cigarettes). If one did consider that plain packaging constitutes an encroachment and resulted in a limitation of the right of property, the answer would be quite straightforward : public health is a matter of general interest, thus justifying derogations to fundamental rights. In this case, a balance of the interests at hand would however be necessary to determine wether the encroachment can be admitted.

    On the other hand, the right to conduct business seems in a much more perilous situation. The importance of packaging when trying to sell a product is much greater than when consuming it. Thus, one could argue that by rendering the packaging less appealing, the legislation puts too great a limit on the right to conduct business (in this case, the sale of cigarettes). But once again, the issue of proportionality can only be answered by the ECJ.

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    • Alain Strowel 28 November 2013 at 09:28 #

      Thanks – isn’t there some contradiction in your text when you seem to admit there is a true invasion of IPRs, but no encroachment on the trademark right?

  6. Joséphine Mairate 20 November 2013 at 22:34 #

    John Dalli, the European health commissioner, explains, regarding the danger of smoking, that an important goal for EU is to mainly focus on “young people and whether they really understand the dangers of the tobacco products they are purchasing”. In fact, tobacco products should be presented in a manner that does not tend to encourage young people to smoke: “we must reduce the attractiveness of cigarettes”, says Dalli.

    Plain packaging removes tobacco companies’ ability to display their branding on tobacco products. It has been argued that this represents an illegal appropriation of their trademarks by Government, thereby breaches their intellectual property rights.

    In response to the proposed revision of the 2001 EU Tobacco Products Directive (TPD), the Tobacco Manufacturers’ Association (TMA) said: “The European Commission must recognize that changes to packaging and pack labelling regulation impact fundamental legal, economic and commercial rights of tobacco manufacturers and consumers. These include their property rights in their brands”.
    If we take Australia as an example, plain packaging for tobacco products has already been implemented: the High Court upheld its constitutionality in august 2012, even if the use of trademark is very limited. Companies, in Australia, argue that plain packaging infringes international trade agreements. In fact, on 28th September 2012, the World Trade Organization (WTO) Dispute Settlement Body agreed to set up a panel to assess whether the plain packaging law passed in Australia breaches intellectual property (IP) rules under the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement. In fact, an important matter on which the Parliament voted was an amendment to introduce a requirement for plain packaging for tobacco products. The amendment was today rejected, mainly because plain packaging requirements would be a very serious invasion of intellectual property rights, in this instance trade marks.

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    • Alain Strowel 28 November 2013 at 09:30 #

      Thanks for your thoughts — but you did not answer directly the questions in the post.

  7. Ruys Marie 20 November 2013 at 21:55 #

    While Australia has mandated plain packaging, it seems that the European Parliament is not ready to do the same thing. It rejected in October an amendment that would require plain packaging. Nevertheless, it voted to adopt rules requiring the health warnings covering 65% of the packs. It looks like the Parliament is trying to find a good balance of interest between the intellectual property rights and a public health interest. The European Parliament still did not solve anything and will probably in the next months be confronted once again to the issue. Indeed, UK has plans to introduce rules of plain packaging and the idea will likely spread to other member states.
    It is without any doubt one big ethical issue. The idea of plain-packaging is good: the goal is to convince people to quit smoking or not to begin smoking. Nevertheless, plain-packaging is a true invasion on intellectual property rights, more precisely trademarks. The trademarks have to create distinctiveness and attractiveness: people buy a product because of the company creating this product. They see directly which product is from which company by the appearance of the product.
    Article 15(1) of TRIPS defines the trademark: “any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. Such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs, shall be eligible for registration as trademarks”. With a requirement of plain-packaging, the article is clearly infringed. The trademarks would lose their distinctiveness and would not be useful anymore. There is no design anymore, no visual aspect, only warnings about health and the name of the company which is not stylized. The name of the company is still written on it, therefore all the utility of the trademark may not be completely lost, but the company can no longer play on the appearance of the product to attract customers.
    I do not think though that it is an illicit “encroachment on the fundamental right of property”. The right of property is indeed a fundamental right. But fundamental rights themselves can receive temperaments, especially when it is in conflict with another fundamental right. This is the case here: we have on one hand the right to property and on the other the right to health. According to WHO, “The right to health means that governments must generate conditions in which everyone can be as healthy as possible”. Since there is a conflict between two fundamental rights, the European Parliament has to make a balance of interest and decides in which case on should prevail on the other. This question must then be asked: should the general interest related to health prevail or not on the property rights of private legal persons? The European Parliament did not want to give a full preemption to one of those rights and decided to do a compromise by allowing rules requiring the health warnings to cover 65% of the product package.
    Tobacco control policies tend to try to nudge the citizens: the policies try to push people to make positive choice while preserving their individual choice. The plain-packaging policy corresponds exactly to that kind of policy and we could think that plain-packaging will bring more debate and be of more and more importance as the time passes.

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    • Alain Strowel 28 November 2013 at 09:34 #

      Good to have identified some kind of definition of the right to health and to include it in your arguments.

  8. Danckers Adèle 20 November 2013 at 18:46 #

    Concerning the legislation, I think we might expect it to become stricter and stricter about the packaging of cigarets. Obvisouly, people are more and more aware of this subject and they are more and more demands to legislate the matter. I think it is going the get strick until we reach the limit of plain-packaging which “frightens” cigarettes producers and IP rights defenders.

    The requirements of plain packaging are indeed an invasion of IP rights. Why ? Because once you own something, you have its property, you should be able to do whatever you want with it. In the line of commerce, you should be able to name your product in the way you want and present a packaging that you want in order to increase your profit. Obviously, the main arguments of plain packaging opponents is the fundamental right that is ownership and property.

    So, the purest meaning of the right of property meant that you should be able to do whatever you want with something that is yours. But those rights now know a lot of “violations”. In the fields of location, the rights of owners, which used to be absolute, are now diminished in order to protect the tenant. For many years, fundamental rights, like property rights, have to be weight up with other fundamental rights that also have to be protected. Therefore, from my point of view, in the case of an encroachment of a fundemantal right, we should first look at the reasons of this overlap before calling it a violation of this right. In this case, other fundamental rights are concerned by this debate. Obviously, here there is the question of the fundamental right to health. In societies like ours, where people fight in order to obtain cheaper and better health care, is it rational to offer them such an easy way to destroy their health ? Especially when cigarettes not only affect the smokers but also their entourage. Morover, the subject is even sensibler when it comes to children ! Is it normal to let this easly influenced youth have access to such a poison ?

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    • Alain Strowel 28 November 2013 at 09:37 #

      Thanks, you could have been more focused on the questions from the post.

  9. Xhulia Musaraj 20 November 2013 at 16:43 #

    The revision of the TPD made by the European Commission focuses on five areas: 1- Smokeless tobacco products and extension of the product scope (i.e. nicotine containing products and
    herbal products for smoking), 2- packaging & labelling, 3- ingredients/additives,
    4- cross-border distance sales and 5- traceability and security features.

    The proposal takes the form of a Directive which will replace as a whole Directive
    2001/37/EC. The proposal seeks to ensure that the appearance of the package reflects the
    characteristics of the product inside the package – a product that has negative health
    consequences, is addictive, for the consumption of adults, children and teenagers. Tonio Borg, commissioner in charge of health & consumer policy at the European Commission, said at the outset of the proposals that they aimed to make tobacco products and smoking less attractive and to discourage “tobacco initiation” among young people. We need to adopt in the near future a new legislation which will put the EU on the frontline on a global stage”.
    “Consumers must not be cheated: tobacco products should look and taste like tobacco products and this proposal ensures that attractive packaging and flavourings are not used as a marketing strategy,” Borg said.
    The proposal provides an update of current provision(Dir 2001/37/EC) on packaging and labelling
    in relation to scientific and international development , in particular as regards image
    warnings. It ensures an effective display of the health warnings and leaves a certain space on the package for display of trademarks. The exact size of the warning (75%) was suggested after thorough analysis of scientific evidence and international experience as well as international developments (Article 11 FCTC and its guidelines call for large double sided picture warnings, and strict rules on misleading information) as well as considerations of the impact on economic stakeholders.
    The aim of the directive is to make tobacco products less attractive by strengthening the rules on how such products can be manufactured, presented and sold.
    The European Parliament rejected the amendment requiring mandatory “plain packaging” for tobacco products and the health warnings to cover no less than 65% of the front and the back of the packs . ECTA (European Communities Trade Mark Association) welcomes the rejection of such amendment, because the proposal would have amounted to a most serious invasion and erosion of valuable trade marks, whose rights were validly obtained and maintained with costly investments over the years. As such they are protected not only under trade mark laws (in the EU based on the Harmonization Directive) but also under the Article 1 of the First Protocol of the ECHR and Article 17 of the Charter of Fundamental Rights of the EU. In addition, Article 20 of TRIPS prohibits unjustifiable encumbrance of trade marks, which are detrimental to the capability of trade marks to distinguish the products of one undertaking from those of another. Indeed, a trademark is not only words or logos but also any signs to distinguish the goods and services of a undertaking from others. Plain packaging will create confusion and deprive those goods of their commercial values.
    Article 17 of TRIPS allows limited exceptions by the member states, but they need to rise a legitimate interest and it can not be an encroachement on owners rights. However,the European Commission is pursuing a legitimate interest, protecting public health, and stating there is no encroachment on owners rights because their brand name will still be written, so buyers can still make the difference.

    Tobacco companies claim that this plan ignores the balance that TRIPS tries to establish between private rights and public interest. The revision should create conditions which allow all citizens across the EU to take informed decisions about the products, based on accurate information on the
    health consequences of consuming tobacco products.

    Sources : http://ec.europa.eu/health/tobacco/docs/com_2012_788_en.pdf
    http://www.ecta.org/IMG/pdf/pp_ecta_comments-2.pdf

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    • Alain Strowel 28 November 2013 at 09:40 #

      Thanks, in particular for the TRIPs arguments.

  10. Mpela Biembongo 19 November 2013 at 23:16 #

    At the European level, there was a proposal to amend the TPD (Tobacco Products Directive) that was, among other things, mentioning plain packaging as a way to promote public health by reducing the incentive of consumer to buy cigarettes. Even though the plain packaging was rejected by the Parliament; it nevertheless adopted rules in order to have health warnings on the bottom of cigarettes packs that can cover no less than 65% of the package. The situation is for example different than in Australia where a law was adopted to enforce plain packaging. But even with the legislation, the situation is not that stable as the law is challenged in front of the High Court of Australia. I think the situation in Europe is not likely to change over the next months as it has already take several years to find that solution.

    What the size of the warnings and the plain packaging concerns, I think it can play a role on the invasion on intellectual property rights. If I have to speak in a totally objective way, without giving my opinion about the tobacco industry in general, the statement of those opposed to plain packaging can be justified. It is important to find a good balance between the desires to make sure that the health of the citizens is preserved in every EU countries. But in the other hand, tobacco manufacturers are entitled to truly benefit from the trademark of their packaging. Otherwise, why would it be interesting for them to register for trademark as it would not change anything because their logo and colour cannot, either partially or totally, be put on their package ? Besides, to have a 70 or 75% warning size can in my opinion be detrimental for them because it does not give much room to advertise.

    However, I really wonder about the utility and most of all the effectiveness of the measures taken by the European Union. It looks like there is always an underlying idea of profit. Indeed, if Europe and countries in general really wanted to fully preserve the health of their citizens, it would have decide to ban tobacco production, as it has been pointed out at the far end of the article. As a matter of fact, people become addicted to tobacco so countries may easily put that type of product on the same level of drugs and ban tobacco as they do with the other type drugs. Yet, for what I am concern, they kind of play the card of hypocrisy basing themselves on the principle of freedom of each individuals: “you are entitle to choose to smoke or not, but we are doing our part of the job by giving less incentive to smoke”. On the order hand, cigarettes and tobacco selling gives money to the states because of the taxes they impose on each product. It is thus part of their income. In this way, one legitimate question we can ask ourselves is to know whether, beyond the genuine worry to take care of the health of the citizens, they really want to stop the selling of tobacco products ?

    There is also a weakness with the plain packaging even if I think this a better way to ensure public health: it would certainly decrease the sale of the well-known brand as they lose their distinctiveness but it does not mean that the sale of tobacco products will diminish in its totality. Besides, there is also a risk for consumer to buy cheaper products as they may not feel the difference anymore between the different products because of the standardized packaging. It may encourage them to buy more at a cheaper price which is exactly the opposite than what is wishing.

    In regard to the question about a possible “encroachment of the fundamental right to property”, I first of all would like to say that, in my opinion, the tobacco industry is one of those who are really seen as “the bad guys”. I am personally not in favour of those. But if we set aside all our judgements concerning this type of industry, and if we consider it like any other basic industry, we may be able to see the shortfalls that result from those rules. Tobacco producers have acquire rights with the registration of the logo, colour, maybe the shape of the packet which qualify their product as “trademarked”. It is the guarantee for them that they can rely on those features to acquire some distinctiveness. Therefore, the requirements of plain packaging have as consequences a loss of distinctiveness and thus a loss of revenue for the tobacco industry. Knowing that the productivity of the industry is mostly based on the image, the shortfalls that result from those rules are notably the advertising expenses based on the trademarks, the cost of registration for trademark, etc. For those reason I think it would legitimate for them to ask for at least some sort of compensation.

    One argument that can be advanced by the one who are opposed to plain packaging is the right for people to dispose of themselves and to use their liberty as they want. But are people really free when they are addicted ?

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    • Alain Strowel 28 November 2013 at 09:43 #

      Good! You do not hesitate to take a clear position.

  11. Ophélie sonneville 19 November 2013 at 17:39 #

    I didn’t find anything about the current situation since the “no” of the Parliament. I think that it really is a touchy topic because there’s two very important interests at stake. On the one hand, there’s the obvious health issue: smokers have to be aware of the dangers caused by the cigaret for themselves but also for other people. In that sense, I believe that shocking pictures and slogans are necessary and should remain compulsory on each packet that is sold.
    But on the other hand, those firms, like any other undertakings must have the right to advertise, to use their own trademark with distinctive colors & letters. If all packaging is the same, no matter the brand, I think that this will have a direct impact on competition between those firms, people will have less incentives to buy one product instead of another. But there’s intellectual property rights that must be respected up to a point.In my view, the policy on plain packaging could have an impact on undertakings between them but not on smokers because people who want to smoke will keep on buying cigarets eventhough the color is not attractive. There already is shocking photos on ten packaging and I think that if they were bigger, it wouldn’t prevent smokers from buying cigarets anyway.
    To conclude, I’m really not in favor of tobacco companies & I think that imposing photos & slogans is an important thing to do to make every smoker aware of the health problems that could occur but I think that the plain packaging policy, if adopted, won’t have a significant impact in term of number of smokers. I think that a huge rise in the price of tobacco products would me more effective

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  12. Pauline De Decker 19 November 2013 at 12:19 #

    1°) The European Parliament had to take up a stance on the Commission’s proposal concerning plain packaging. Within the scope of the ordinary legislative process, legislating is indeed a task that is assigned to both the Council and the European Parliament. Therefore, the lot of this proposal also depends on whether the Council will support or, on the contrary, turn away from the Parliament’s opinion by adopting a common position. In that hypothesis, a second reading would then take place and if no agreement can be reached, the broke down of negociations would lead to the mediation of the Conciliation Committee. If both institutions eventually reach a compromise, the proposal could come into being. Nevertheless, if no issue can be found with the mediation of the Conciliation Committee, the proposed act shall be deemed not to have been adopted (art. 294 TFEU). Both situations are therefore conceivable in the next months.

    2°) I think that in that kind of matters, the debate about whether plain packaging may constitute an infringement of IP rights is undoubtedly dominated by personal feelings about tobacco. But when I try to be objective, I arrive to the conclusion that plain packaging does constitute a violation of property rights. The best argument to support this position is that IP owners have no choice about the visual aspect of their product and they have to undergo measures whose purpose is precisely to prevent people from buying their product ! Thus, in legal terms, the best argument is that in order for a trademark to be valid and for a product to be granted legal protection, it must be distinctive. Well, in the case of plain packaging, the tobacco producers have been dramatically (if not totally) deprived of the possibility to meet this criterion of distinctiveness.

    3°) Clashes between different protected rights have always existed. The real question is: which right should prevail ? In the present case, the right to use his trademark, to arrange his product in a way one likes, to use trademarked colours, etc. is infringed in favor of the right to be informed and the right to health involving that the State must act in a way that protects the health of its citizens. According to me, this second right is the most important even though I must admit that the criterion of proportionality between the infringement of the first right and the benefit gained for the second right is probably not met.

    4°) About the very last question, it seems obvious that the best public policy to fight against smoking effects would be the pure and simple prohibition of tobacco products. Such a measure is nevertheless unconceivable because the State wants to reduce the harmful effects of smoking but is not ready to abandon the revenue that such a business generates (under the form of taxes). Among the less drastic measures, the use of tax measures and the use of pictures trying to soil the image of tobacco products are probably the less bad measures but, on the other hand, as long as those products are not forbidden, I think that a minimal space should be left to make it possible for the brand to express its distinctiveness.

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  13. POLLART Hélène 18 November 2013 at 23:07 #

    This article is about plain packaging. If we legally look at this topic, we can say that the amendment aimed at doing plain packaging was rejected. However, we voted a law about health warnings that have to cover more than 65% of the cigarette packs. So, we can see the rules about the health warnings on the packs as a beginning to promote the health of people. Maybe we adopted these rules because we realized that with more health warnings, people will diminish to smoke. So, we also can expect that we will be able, in the future, to prove that plain packaging has a dissuasive effect on young people. Indeed, a study of the Antwerp University shows that plain packaging is less attractive and so, younger buy fewer cigarettes. This phenomenon can be explained by the fact that young people are more vulnerable and so, they will be more interested in things that look good. If we can demonstrate this, maybe the European Parliament will adopt plain packaging with respect to the public health. Indeed, if less young people smoke, it means there will be fewer smokers because young people start more than adults to smoke.

    The issue which can rise in that concern is that plain packaging is perhaps an “invasion on intellectual property rights”. However, plain packaging just concerns the visual aspect of cigarette packs. For this reason, I will tend to say that brands of cigarettes will continue to have their property rights on it and one brand owner will be able to differ from another one regarding the shape of the packs, the cigarettes in themselves,… But as the plain packaging concerns the visual aspect of cigarette packs, their opponents say that neutral packs will be easier to copy than packs with protected logos and trademarked colors. In other words, they claim that plain packaging will promote counterfeiting. In my view, this is not true. Indeed, counterfeiters have the ability to copy whatever they want and the fact that it’s a neutral pack won’t change anything, according to me.

    Furthermore, I think that even if plain packaging is an encroachment on the fundamental right of property, it’s not illicit. Indeed, we have another fundamental right involved in this case, that we also have to promote, which is the right to life (and so, in the same idea, the right to health). With the rules adopted on the health warnings, we try to prevent people to smoke because when someone smokes, it destroys his health but also the healthy condition of his family members, friends,… Moreover, women who smoke can harm their unborn babies. And, according to me, this right to life should prevail over the right to property. Indeed, if we are not in life, we cannot exercise our right to property!!

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