Tobacco is a deadly product. Public health wants tobacco use curtailed, worldwide. So, when the Kiwis announced their intention to follow Australia and explore “plain packaging” for cigarettes, with a goal of a smoke-free New Zealand by 2025, public health folks cheered. No more tobacco trademarks on cigarette packages. Fewer deaths from tobacco. Of course the tobacco companies are unhappy, but who else would be upset?
Yesterday, New Zealand’s plans were attacked — by the US Chamber of Commerce, the National Association of Manufacturers, and other pro-business, free-trade groups, as a violation of the WTO TRIPS Agreement on global intellectual property (IP). From their press release:
While there is no question that protecting public health is a legitimate objective, there is also no question that trademarks and other forms of intellectual property stimulate innovation and are essential to building vibrant economies. There is no fact-based evidence which suggests that mandating the destruction of intellectual property (IP) will advance public health. We firmly believe the measure in question could instead undermine public health as a result of unintended consequences, such as an increased influx of counterfeit tobacco products.
New Zealand has made binding commitments under international obligations to protect IP while it has no such obligation to mandate plain packaging of tobacco products. There are numerous methods to effectively regulate the tobacco industry that do not undermine the protection of IP, do not have such damaging unintended consequences, and are consistent with New Zealand’s international trade obligations. New Zealand, as a world leader in the international trading system, surely recognizes the critical importance of abiding by international trade rules and the value of not undermining that system. We do not believe the current international trading system in any way impedes the ability of governments to regulate in the public interest. But, the mandated trademark destruction through government imposed plain packaging does violate international trade rules.
- Tobacco packaging and restrictions on tobacco promotion are part of the agenda of the WHO Framework Convention on Tobacco Control (arts. 11 & 13).
- The real conflicts here are trade law v. public health law; WTO v. WHO; IP v. public health (sound familiar?)
- If New Zealand and Australia’s public health actions violate TRIPS, let the WTO Appellate Body decide that case. Why threaten NZ with press releases during the Trans-Pacific Partnership negotiations (in Dallas in early May)?
- Australia’s plain packaging legislation was before the High Court of Australia for three days this week, also claiming a violation of IP laws. Reports suggest it didn’t go well for tobacco.
- We are in the midst of a global legal war over tobacco promotion.