A practical application of the role of the WHO FCTC in Australia can be viewed in the context of Australia’s tobacco plain packaging measure. This section examines the role of the WHO FCTC both during the legislative process of developing the measures and in legal challenges defending the measures.
Plain packaging is recommended by guidelines for the implementation of Article 11 (packaging and labelling) and Article 13 (tobacco advertising, promotion and sponsorship) of the WHO FCTC adopted by the Conference of the Parties of the WHO FCTC.
Guidelines for the implementation of Article 11 of the WHO FCTC provide:
‘46. Parties should consider adopting measures to restrict or prohibit the use of logos, colours, brand images or promotional information on packaging other than brand names and product names displayed in a standard colour and font style (plain packaging). This may increase the noticeability and effectiveness of health warnings and messages, prevent the package from detracting attention from them, and address industry package design techniques that may suggest that some products are less harmful than others’.
Guidelines for the implementation of Article 13 of the WHO FCTC state:
15. Packaging is an important element of advertising and promotion. Tobacco pack or product features are used in various ways to attract consumers, to promote products and to cultivate and promote brand identity, for example by using logos, colours, fonts, pictures, shapes and materials on or in packs or on individual cigarettes or other tobacco products.
16. The effect of advertising or promotion on packaging can be eliminated by requiring plain packaging: black and white or two other contrasting colours, as prescribed by national authorities; nothing other than a brand name, a product name and/or manufacturer’s name, contact details and the quantity of product in the packaging, without any logos or other features apart from health warnings, tax stamps and other government-mandated information or markings; prescribed font style and size; and standardized shape, size and materials. There should be no advertising or promotion inside or attached to the package or on individual cigarettes or other tobacco products.
Packaging and product design are important elements of advertising and promotion. Parties should consider adopting plain packaging requirements to eliminate the effects of advertising or promotion on packaging. Packaging, individual cigarettes or other tobacco products should carry no advertising or promotion, including design features that make products attractive.
On 29 April 2010, the Australian Government announced that it would introduce mandatory plain packaging of tobacco products as part of a comprehensive strategy to reduce smoking rates in Australia. As part of the legislative development process, consultations occurred with the public and relevant stakeholders in a manner consistent with the Implementation Guidelines for Article 5.3 of the WHO FCTC. As outlined in section 19.3 above, Article 5.3 and its guidelines requires Parties, in setting and implementing their public health policies with respect to tobacco control, to act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law including interacting with the tobacco industry only when and to the extent strictly necessary to enable effective regulation of the tobacco industry and tobacco products, and that any necessary interactions should be conducted transparently. The consultation process for the development of Australia’s tobacco plain packaging measures was conducted by the Australian Government Department of Health through formal public consultation processes and, in addition, through targeted consultation with stakeholders. The details of the formal consultation processes, including consultation papers and submissions to the consultations, were made publicly available1 and a public record maintained to provide notification of meetings between the Australian Government Department of Health and the Tobacco Industry.2
The explanatory memorandum accompanying the Tobacco Plain Packaging Bill stated that the introduction of plain packaging for tobacco products was ‘one of the means by which the Australian Government will give effect to Australia's obligations under the World Health Organization Framework Convention on Tobacco Control’,3 citing Articles 5, 11 and 13 of the WHO FCTC in support.
The Tobacco Plain Packaging Act 2011 was passed by the Australian Parliament in November 2011 and received Royal Assent in December 2011. The objects of the Tobacco Plain Packaging Act specifically include giving effect to certain obligations that Australia has as a party to the WHO FCTC.4 From December 2012, Australia became the first country in the world to introduce tobacco plain packaging; with all tobacco products sold in Australia required to comply with the legislation. The legislation bans the use of logos, brand imagery, symbols, other images, colours and promotional text on tobacco products and tobacco product packaging. Packaging must be a standard drab dark brown colour in matt finish. Packs are distinguished by brand and product name printed in a standard colour, position, font size and style. Cigarette packs must be rectangular and made of rigid cardboard, with no embellishments. The pack opening must be a flip-top lid, hinged at the back of the pack. The legislation also specifies maximum and minimum size restrictions for packs. Graphic health warnings, updated and expanded under the Competition and Consumer (Tobacco) Information Standard 2011,5 are required on 75% of the front and 90% of the back of tobacco packaging.
Australia’s tobacco plain packaging scheme has faced three legal challenges — a domestic constitutional challenge before the High Court of Australia; a challenge by Cuba, the Dominican Republic, Honduras and Indonesia before the World Trade Organization; and by Philip Morris Asia (PMA) under a 1993 Hong-Kong Australia Bilateral Investment Treaty (‘BIT’).
The High Court of Australia dismissed a domestic constitutional challenge to Australia's Tobacco Plain Packaging Act 2011 by British American Tobacco, Japan Tobacco, Imperial Tobacco and Philip Morris. The Court held that the Tobacco Plain Packaging Act did not constitute an ‘acquisition of property'. The Court held that although the Act regulated the tobacco manufacturers' intellectual property rights and imposed controls on the packaging and presentation of tobacco products, it did not confer a proprietary benefit or interest on the Australian Government or any other person and therefore the provision of just terms compensation was not required.6
Whilst the WHO FCTC did not feature prominently in the High Court decision, the WHO FCTC was an important part of Australia’s defence in the investment arbitration case brought by Philip Morris Asia (PMA) against Australia’s tobacco plain packaging measure under the BIT between Australia and Hong Kong. PMA claimed that the Australian Government had breached its obligations under the treaty, arguing that the plain packaging legislation expropriated its intellectual property, and that PMA was not afforded fair and equitable treatment.
In its response to PMA’s Notice of Arbitration, for example, Australia noted that:
‘Australia’s history of progressively more comprehensive and stringent tobacco regulation is consistent with trends in countries around the world, and also international steps to combat the global health epidemic posed by tobacco smoking through the FCTC.’ (7 at para 16.)
At other points in its response to the Notice of Arbitration, Australia emphasised that plain packaging was intended to implement the WHO FCTC, noting that the WHO FCTC imposes a ‘comprehensive set of obligations’ in relation to tobacco control measures. (7, at para 17) Such obligations included the obligation to implement effective measures on packaging and labelling in Articles 11 and the obligation to implement a comprehensive ban on tobacco advertising, promotion, and sponsorship in Article 13 of the WHO FCTC. Australia also emphasised that the Article 11 and Article 13 Guidelines for implementation recommended the adoption of plain packaging, among other measures, in order to give effect to WHO FCTC obligations.(7, at para 17)
Finally, in emphasising the importance of plain packaging as a public health measure, Australia stated that it was ‘implementing plain packaging to protect the public health of Australia's population from an addictive and dangerous substance that causes widespread death and disease in Australia (and around the world)’ and noted that the WHO and WHO FCTC Secretariat had provided ‘strong support for plain packaging as an effective public health measure’. (7, at para 38)
PMA’s claim was dismissed at the jurisdictional stage and did not proceed to the merits. The tribunal issued a unanimous decision agreeing with Australia’s position that the tribunal had no jurisdiction to hear Philip Morris Asia’s claim as the initiation of the arbitration constituted an abuse of rights.8 The Tribunal did not discuss the WHO FCTC in its final Award.
In relation to the WTO dispute, Australia repeatedly cited the WHO FCTC and its Guidelines in the integrated executive summary of Australia’s submissions to the WTO. These include references to the fact that the WHO FCTC requires comprehensive tobacco control strategies to reduce the incidence and prevalence of smoking; (9 at para 9) that Australia’s decision to implement plain packaging was based on the explicit recommendation of the WHO FCTC guidelines as a means to implement WHO FCTC obligations;(9 at paras 12 and 128) and that the WHO FCTC guidelines reflect international scientific consensus.(9 at para 129).
The submission states:
‘Tobacco plain packaging is a legitimate public health measure, based upon an extensive body of scientific evidence and the explicit recommendations of the Parties to the FCTC.’ (9 at para 161)
The WTO panel’s decision in favour of Australia cites the WHO FCTC, and the references to them in the Tobacco Plain Packaging Act and its explanatory memorandum, extensively to support its findings, including10:
1. Australian Department of Health. Introduction of Tobacco Plain Packaging in Australia. 2016. Last update: 27 May 2016; Viewed 14 December 2016. Available from: http://www.health.gov.au/internet/main/publishing.nsf/Content/tobacco-plain.
2. Australian Department of Health. Public notification of meetings between the Australian Government Department of Health and the Tobacco Industry. Last update: 18 October 2016; Viewed 19 December 2016. Available from: http://www.health.gov.au/internet/main/publishing.nsf/Content/tobacco-conv-public.
3. Tobacco Plain Packaging Bill 2011 - Exposure draft: Explanatory memorandum. 2011; Available from: https://www.legislation.gov.au/Details/C2011B00128/Explanatory%20Memorandum/Text.
5. Competition and Consumer (Tobacco) Information Standard, 2011. Available from: http://www.comlaw.gov.au/Details/F2011L02766.
6. JT International SA v Commonwealth of Australia, 2012, High Court of Australia. Available from: http://www.austlii.edu.au/au/cases/cth/HCA/2012/43.html.
9. Australia – Certain Measures Concerning Trademarks, Geographical Indications and other Plain Packaging Requirements Applicable to Tobacco Products and Packaging (WT/DS435/441/458/467), Integrated Executive Summary of Australia's Submissions. 23 March 2016., World Trade Organization. Available from: http://dfat.gov.au/international-relations/international-organisations/wto/wto-dispute-settlement/Documents/integrated-executive-summary-aus-submissions-tobacco-plain-packaging-ds435-441-458-467.pdf .
10. Australia – Certain measures concerning trademarks, geographical indications and other plain packaging requirements applicable to tobacco products and packaging (WT/DS 435/441/458/467) Report of the Panel, 28 June 2018, World Trade Organization.
11. McCabe Centre for Law and Cancer. An initial overview of the WTO panel decision in Australia – Plain Packaging, 3 July 2018. Available from: http://untobaccocontrol.org/kh/legal-challenges/initial-overview-wto-panel-decision-australia-plain-packaging/.