Plain Packaging of Tobacco Products in Australia: A Novel Regulation Faces Legal Challenge

(2012) 307(3) Journal of the American Medical Association 261–262

2 Pages Posted: 5 Jun 2015

See all articles by Andrew D. Mitchell

Andrew D. Mitchell

University of Melbourne - Law School

David M. Studdert

University of Melbourne - Faculty of Law & Faculty of Medicine, Dentistry and Health Sciences

Date Written: January 18, 2012

Abstract

Australia has become the first country to pass legislation mandating plain packaging of tobacco. Beginning December 1, 2012, all tobacco products must be sold in drab brown packs that have prominent health warnings and are devoid of graphic trademarks and other embellishments. Wrangling in the courts is already under way, and the nature of the legal challenges is becoming clear. The future of Australia’s plain packaging mandate will turn on questions in constitutional, trade, and investment law. The primary objection to the plain packaging mandate under international trade law relates to World Trade Organization (WTO) rules governing intellectual property which are set out in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). There are 2 main issues related to TRIPS. The first is whether WTO members must grant trademark owners a right to use their trademarks. The second issue is whether TRIPS permits WTO members to restrict the use of trademarks for the purpose of protecting public health. As regards the first issue, the article argues that the plain packaging law restricts the right of tobacco companies to use their trademarks; it does not bar the companies from preventing others from using them, nor does it invalidate or deny the registration of any trademark. As to the second point, the article points that encumbrances on trademarks that are designed to protect public health are unlikely to breach TRIPS.

Keywords: Plain Tobacco Packaging, TRIPS

Suggested Citation

Mitchell, Andrew D. and Studdert, David M., Plain Packaging of Tobacco Products in Australia: A Novel Regulation Faces Legal Challenge (January 18, 2012). (2012) 307(3) Journal of the American Medical Association 261–262 . Available at SSRN: https://ssrn.com/abstract=2614806

Andrew D. Mitchell (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia
+61383441098 (Phone)
+61393472392 (Fax)

HOME PAGE: http://www.law.unimelb.edu.au/staff/Andrew%20Mitchell

David M. Studdert

University of Melbourne - Faculty of Law & Faculty of Medicine, Dentistry and Health Sciences ( email )

185 Pelham Street
Carlton, Victoria 3053
Australia

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