Plain packaging valid because brand names not acquired by government

Australia’s law requiring that tobacco be sold in ‘plain packaging’ is constitutionally valid because it does not acquire property, the High Court has explained.

According to an Australian Associated Press story, the court on Friday published its reasons for ruling in mid-August that plain packaging was constitutionally valid. ‘Although the (Tobacco Plain Packaging) act regulated the plaintiffs’ 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 commonwealth,’ said a summary of the judgment released by the court.

“The act was valid as it did not acquire property.’

Dyson Heydon, the sole dissenting judge in what was a 6 to 1 ruling, criticized the government’s ‘hatred’ of Section 51 (xxxi) of the constitution, which requires it to pay for property it acquires.

British American Tobacco Australia (BATA), Japan Tobacco International, Philip Morris and Imperial Tobacco Australia will have to pay the commonwealth’s legal costs, which Attorney-General, Nicola Roxon, said ran into millions of dollars.

The legislation means all tobacco products will, from December 1, have to be sold in olive-colored packs designed on behalf of the government to look as unattractive as is possible.

BATA on Friday maintained the government’s policy was flawed. Spokesman, Scott McIntyre, said in a statement that regardless of the reasons for the High Court’s decision, the plain packaging requirement was a bad piece of law that would have serious unintended consequences.

Meanwhile, The World Trade Organization’s Dispute Settlement Body (DSB) has agreed to establish a panel to examineAustralia’s plain packaging requirements.

In its request for the establishment of a panel,Ukrainesaid thatAustralia’s measures ‘erode the protection of intellectual property rights’ and ‘impose severe restrictions on the use of validly registered trademarks’.

Ukraine’s statement said also that ‘Ukraineconsiders that governments should pursue legitimate health policies through effective measures without unnecessarily restricting international trade and without nullifying intellectual property rights as guaranteed by international trade and investment rules’.

Ukraine considers that the measures ‘are clearly more restrictive than necessary to achieve the stated health objectives’ and thus violate the Agreement on Technical Barriers to Trade as an ‘unnecessary obstacle to trade’.