Plain Packaging in a Broader Regulatory Framework: Preventing False Claims and Investor State Lobbying
Faunce T.A., ‘Plain Packaging in a Broader Regulatory Framework: Preventing False Claims and Investor State Lobbying.’ In Tania Voon Andrew D.Mitchell and Jonathan Liberman with Glen Ayres (eds) Public Health and Plain Packaging of Cigarettes: Legal Issues Edward Elgar London 2012; 200-213
16 Pages Posted: 11 Sep 2012
Date Written: September 10, 2012
The Australian government introduced legislation for plain packaging of cigarettes in July 2011. This immediately provoked a strong counter-reaction from the multinational tobacco industry, particularly Philip Morris International. Two major areas in which the tobacco industry targeted the legislation concerned advertising claims that its trade marks did not unduly promote smoking (for instance an advertising campaign claiming that only a 'Nanny State' would deprive people of freedom of choice) and use of investor state provisions to seek damages against the Australian government. This chapter explores the hypothesis that those initiating Australian plain packaging legislation may not have learnt important lessons from related proposals in other jurisdictions. Amongst those lessons and emphasized here, is the need to implement plain packaging legislation within a broader regulatory framework. It is argued that such a framework should include a mechanism for uncovering and claiming damages against tobacco industry false claims, as well as restrictions upon use of investor state dispute resolution mechanisms in trade agreements. It sets out some proposals that might be incorporated in subsequent amendments of the Australian anti-smoking legislative scheme to effectively aid the plain-packaging requirements from achieving their primary goal, which is the substantial reduction of cigarette smoking in Australia.
Keywords: plain packaging, tobacco, tobacco regulation, investor-state dispute settlement, qui tam, false claims, TPP
JEL Classification: H41, I22, I18, K23, K13, L66
Suggested Citation: Suggested Citation