The Tobacco Industry's Challenge to the United Kingdom's Standardised Packaging Legislation – Global Lessons for Tobacco Control Policy?
Special Issue of the Queensland University of Technology Law Review on Plain Packaging, Forthcoming
21 Pages Posted: 4 Aug 2017
Date Written: August 2, 2017
The United Kingdom’s Standardised Packaging of Tobacco Products Regulations 2015 came fully into effect from 21 May 2017. The Regulations were contested vigorously by the tobacco industry, both through the legislative consultation process and in the courts. This article focuses on R on the application of British American Tobacco Limited v The Secretary of State for Health, the claim for judicial review brought by the industry. In this claim, standardised packaging legislation was challenged on a number of grounds – including proportionality, compatibility with the right of property and with international and European Union rules on the protection of intellectual property. All these arguments were rejected in forceful terms by Green J in the High Court and, again on appeal, by the Court of Appeal. This article sets out the industry’s claims in detail and explores the grounds on which the legislation was upheld. It also outlines the European Union legal context within which the legislation operates, including the important judgment of the Court of Justice of the European Union in (C-547/14) Philip Morris Brands SARL and Others v Secretary of State for Health. It is suggested here that the reasoning in these judgments may prove instructive well beyond the borders of the United Kingdom.
Keywords: Tobacco Control, Standardised Packaging, Plain Packaging, Fundamental Rights, EU Law, Judicial Review, Proportionality, Human Rights, Right of Property, Expropriation, Trade Marks, Intellectual Property
JEL Classification: I12, I18, K10, K22, K32, K33, K42, K11
Suggested Citation: Suggested Citation