'On the Back of a Cigarette Packet' – Standardised Packaging Legislation and the Tobacco Industry's Fundamental Right to (Intellectual) Property

Abstract

Standardised packaging (also known as plain packaging) legislation has recently been adopted in some states as a tobacco control measure. Under such laws, tobacco products must be sold in drab coloured packaging without branding other than a written indication of the name under which the product is sold. Its aim is to reduce the attraction of tobacco products, particularly to young smokers, and to prevent advertising imagery from interfering with prominent mandatory textual and visual health warnings. In March 2015, the Standardised Packaging of Tobacco Products Regulations 2015 received Parliamentary approval in the United Kingdom. The tobacco industry vigorously opposed their introduction. Amongst other objections, it claimed that the restrictions on branding introduced under the Regulations violate its fundamental right of property under Art 1 of the First Protocol of the European Convention on Human Rights and Art. 17 of the Charter of Fundamental Rights of the European Union because they deprive it of its ability to use marks, designs and inventions protected by intellectual property law. In this article, this argument is tested by reference to the case law of the European Court of Human Rights and the Court of Justice of the EU. It is demonstrated that the absolutist view of property rights promoted by the Industry is very different from that prevailing in European fundamental rights law and that, as a result, the Industry’s suggestion that the Regulations violate A1P1 and Art. 17 is seriously misleading.

Keywords: intellectual property, trade marks, tobacco control, health, fundamental rights, right of property, EU law, European human rights law, EU Charter of Fundamental Rights, European Convention on Human Rights, public law, judicial review

JEL Classification: K10, K20