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1. Establish the Aims and Objectives
It is critical to establish clear aims and objectives for an effective policy development process of a tobacco control policy. Many domestic and international courts and tribunals apply legal tests to establish whether or not a measure is proportionate or justified in relation to its intended objectives. Where a government fails to formally establish those objectives, a legal challenge may be more difficult to defend.
Plain packaging serves multiple objectives within the broader context of tobacco demand reduction strategies which are to improve public health by:
- discouraging people from taking up smoking, or using tobacco products; and
- encouraging people to give up smoking, and to stop using tobacco products; and
- discouraging people who have given up smoking, or who have stopped using tobacco products, from relapsing.
The objectives of plain packaging are achieved by:
1. reducing the appeal and attractiveness of tobacco products to consumers,
2. increasing the noticeability and effectiveness of health warnings on the packaging of tobacco products,
3. reducing the ability of the packaging of tobacco products to mislead consumers about the harmful effects of smoking or using tobacco products,
AND
4. eliminating the ability of tobacco packaging to advertise and promote tobacco consumption,
5. having a positive effect on smoking-related attitudes, beliefs, intentions and behaviors or assisting with the denormalization of tobacco products.
This list is drawn from the objectives as expressed in the WHO FCTC Guidelines for Articles 11 and 13, Australia’s Tobacco Plain Packaging Act 2011, Ireland’s Public Health (Standardised Packaging of Tobacco) Act 2014, and the public consultation documents from the UK.
Governments proposing plain packaging should consider which objectives are relevant for them, but it is recommended that governments take a broad inclusive approach to the aims they wish to achieve and the means by which they should be achieved through the implementation of plain packaging.
It is important that the first 3 objectives are evidence-based and capable of being monitored and evaluated. Most of the research evidence evaluates one of these three objectives in some way.
2. Set out the objectives in official documents
It is important that a government sets out the aims for the policy clearly in official, publicly available documents or publications. For example, this can be in the preamble or explanatory notes of the legislation itself (as Australia and Ireland did); in public consultation documents (as the UK and Canada have done); or in a Regulatory Impact Assessment (such as the one published by New Zealand). Links to these documents are given in the Related Resources box to the right.
3. Establish that plain packaging is in furtherance of the WHO FCTC
It is also important that a government formally recognizes that plain packaging is a policy recommended in the implementing guidelines for Articles 11 and 13 of the WHO FCTC. The fact that a country is adopting a policy in furtherance of its international legal obligations can be a significant factor for courts or tribunals asked to consider that policy. Both the Australian and New Zealand legislation, and the UK consultation document, state that plain packaging is intended to give effect to obligations in the WHO FCTC.
4. Plain packaging objectives work as part of a wider tobacco control policy
It is critical for policy and legal reasons that plain packaging is part of a wider tobacco control strategy that includes:
- a comprehensive tobacco advertising, promotion and sponsorship (TAPS) ban, including a ban on point of sale advertising, and
- effective graphic health warnings in line with WHO FCTC recommendations.
The reasons for this are:
Policy issues
- It makes little sense to remove the advertising and promotional elements on tobacco packets but still allow advertising or promotion of tobacco products in other ways.
- One of the key aims of plain packaging is that it increases the noticeability and effectiveness of the graphic health warnings. Therefore, a country should either have in place, or be introducing concurrently with plain packaging, health warnings that are in line with the recommendations of WHO FCTC Article 11 guidelines – at least 50% front and back with graphic pictures.
- In Australia and in the EU countries that have introduced plain packaging, health warnings increased in size at the same time plain packaging was introduced.
Legal issues
- International legal challenges, as well as many national legal jurisdictions, often include a test of whether it is necessary or justified to introduce a measure that has the potential to restrict trade in goods or commercial activity. This type of legal argument includes consideration of whether there are less restrictive alternative measures that could also meet the policy objectives. If a comprehensive TAPS ban is not in place or being introduced, a court could consider that a TAPS ban may be a less restrictive option for achieving the policy objectives than introducing plain packaging.
- Tobacco companies could argue that the efficacy of the policy would be undermined by other forms of advertising.
- There is significant research evidence that shows plain packaging is effective at increasing the notice ability of health warnings. But without regulations requiring effective health warnings that are in accordance with FCTC recommendations, it would be difficult to use that to support the defense of plain packaging in a legal challenge.