Australia has become the first country to require all tobacco products to be sold in plain packaging. As of last month, most space on cigarette packets in Australia is now taken up with graphic health warnings and the product is devoid of trademarks except the brand name appearing in standardised plain font and size for all brands.
Anti-plain pack campaigners are concerned about the potential domino effect this policy could have, setting a precedent internationally for tobacco and other products. The industries most likely to be targeted next are alcohol and ‘junk’ food, which the World Health Organisation (WHO) has stated are ‘prime candidates’ for ‘stronger regulatory controls’.
Aside from tobacco, alcohol advertising is one of the most controlled and regulated forms of marketing. Some or all types of alcohol advertising are banned in many countries, including France, India, Ukraine and Norway, where bans prohibit alcohol advertising on television and billboards.

Graphic warnings

Many government bodies have openly stated that they draw on experience from tobacco control to formulate policies on alcohol regulation. The proposed introduction of graphic health warnings for alcohol in Thailand was said to have been based on the approach taken to tobacco advertising and packaging (which itself is strictly regulated in the country). South Africa’s health minister has also indicated that he favours an approach to alcohol control similar to that taken in relation to tobacco.
Some advocates are arguing for tobacco-like regulations to be imposed in relation to food containing sweeteners – for instance, Australian health experts have called for more rigorous government intervention in relation to unhealthy foods. And the Irish Dental Association recently called for the introduction of public health labels on soft drinks to warn of high sugar content.
Where will it stop -- gambling, cosmetics, so-called pollutant products?
If plain packaging is introduced for products other than tobacco, it is difficult to predict where the line will be drawn.
Other products that may be soon be in the line of fire include ‘cosmeceuticals’ (personal care products, such as skin whitening creams) that are viewed by some as potentially harmful. Pastimes such as gambling may also be at risk; again in Australia, the Victoria state government has already ordered pubs and clubs to install ‘plain packaging’ betting signs in a bid to curb slot machine use.

Slippery slope

The concern is that restricting the use of trademarks on products for reasons of public health could be the start of a slippery slope leading to restrictions on the use of trademarks for other legitimate policy reasons, such as environmental protection. Might we see plain packaging introduced on non-recyclable products or products with high carbon footprints?
If this approach were accepted, the nature and extent of trademark use on many consumer products would essentially depend on the policy decisions of each national government. This could upset the delicate balance between economic and policy interests and restrict the movement of goods between markets. And it is likely that the WTO would have much to say on the subject.
The main justification for plain packaging in relation to tobacco products is that the removal of ‘glitzy’ branding will lead to a decrease in consumption, which will benefit public health. However, tobacco companies argue that there is no evidence that plain packaging will in fact lead to an overall decrease in consumption, even if it does decrease consumption of a particular brand of cigarette.
Their view is that the approach adopted in Australia amounts to the effective theft of valuable intellectual property rights, takes away consumer choice and is likely to lead to an increase in counterfeit products. Last year Ukraine -- and many supporting nations -- filed a case against Australia at the WTO along these lines and a panel has been established to hear the case. If Australia is found to be in breach of WTO rules, it is not clear how the government will be able to comply without reversing its stand on plain packaging.

Public interest

Smoking is an emotive subject and arguments about loss of intellectual property rights raised by the tobacco companies struggle to be heard against the public interest points invoked by the plain packaging lobby.
However, similar public interest arguments are less persuasive in relation to plain packaging for alcohol, food and the other products, all of which can be consumed selectively in a way that is not damaging to public health.
The introduction of plain packaging seems a rather heavy-handed way of addressing public health issues for those products, particularly as the cost of doing so is high both for consumers -- in terms of the reduction in choice and confidence -- and for brand owners, in terms of erosion of intellectual property rights.
Given the potential downsides of plain packaging and the fact that tobacco is a uniquely risky everyday product, it is hoped that sufficient research is conducted on the effectiveness of the Australian legislation, and consideration given to the suitability of applying similar measures to different products, before plain packaging is rolled out more widely and the domino effect begins.

Lindsay Cook, an associate at London-based specialist intellectual property global law firm Rouse, also contributed to this article