Each Clause of the Law Explained

1. Introduction

These pages detail the key elements to include in tobacco plain packaging legislation and provide the reasons for including each element or feature.

The guiding principle behind plain packaging is that the only means of differentiating products should be through the brand and variant name, which are presented in a standard typeface. Achieving this requires regulating each and every aspect of the packaging and the appearance of individual products.

The technical detail in these pages and in the accompanying Model Law Template, is drawn from the existing legislation in those countries that have already enacted plain packaging laws. Other governments considering plain packaging will need to review the nature of the products and packaging that exist in their market and adjust, or amend, their legislation accordingly.

Each section listed to the right refers to the legislation of countries that have already adopted plain packaging, namely Australia, the UK, Ireland, France and Hungary. The Comparison of Existing Laws contains a table that lists relevant clauses in the laws from these countries.

This Toolkit will continue to be updated. Please contact us to inform us of any problems you encounter or alternative forms of packaging that are regulated under new draft legislation, so that this Toolkit and the Model Law Template can be adapted and updated.

The European Union Tobacco Products Directive (EU TPD) includes some provisions concerning the packaging and presentation of tobacco products and so requires a ‘partial’ standardization of packaging policy (for instance, the shape and opening of cigarette packets as well as the minimum content). These obligations must be implemented by all EU Member States, including the UK, Ireland, France and Hungary. Where a reference is made to one of these EU TPD requirements, it will necessarily be part of the domestic legislation in each of those countries.

The legislation from countries that have adopted plain packaging laws that are referred to in this Reference Section is listed below with web links to the full texts:
Existing Legislation
Australia	Tobacco Plain Packaging Act 2011 Tobacco Plain Packaging Regulations 2011
United Kingdom	Children and Families Act 2014 The Standardised Packaging of Tobacco Products Regulations 2015
Ireland	Public Health (Standardised Packaging of Tobacco) Act 2015 Public Health (Standardised Packaging of Tobacco) Regulations 2017
France	The implementing legislation that amends the Public Health Code is Decree No. 2016-1117 of 11 August 2016 on the manufacture, presentation, sale and use of tobacco products. The relevant parts of the public health code. French (consolidated version) Decree of 21 March 2016, on the conditions of neutrality and standardization for the packaging and paper of cigarettes and rolling tobacco. English version of the draft Decree (which is substantially the same) contained in the notification to the EU Commission
Hungary	Decree No. 239/2016 Amending Government Decree 39/2013 of February 14, 2013 on the manufacture, placement on the market and control of tobacco products, combined warnings and the detailed rules for the application of the health-protection fine.

2. Color

It is important to specify the exact color required for the packaging, otherwise variations of color will appear, defeating the intention of standardizing packaging. Simply requiring brown, or a green/brown, is insufficient.

Pantone provides a system of accurate color categorization. There are no copyright issues in using these colors in legislation (this was confirmed with Pantone in the UK and Australia). The Pantone system has terms of categorization and identification, and the colors are not trademarked.

What color should the packs be? Australia commissioned research into which color was perceived to be the least appealing for tobacco packaging. The research looked at a range of issues, including consumer perceptions of branding appeal and smoking harm, consumer perceptions of plain pack colors, and legibility of brand names on plain packs. The research found a dark brown color to be the best candidate, as people perceived it to be the least appealing and thought that the packs would contain cigarettes that are more harmful to health and harder to quit.

Unless there is specific evidence or research that demonstrates different colors would be more effective in a particular country at achieving the aims of the policy, it is recommended that these colors are used in all plain packaging legislation because of the research already conducted that demonstrates the efficacy of this color. There could be legal risks in deviating from that evidence base.

A ‘matt finish’ to the surface should also be specified to avoid some packs appearing with a glossy or other finish.

The color of the inside or internal surfaces of packs also needs to be defined. In most instances of existing legislation, internal surfaces are required to be white or Pantone 448C.

3. Permitted Text

As described in Guide 3.1: Make key policy decisions, a number of requirements are needed for any text that appears on the packets (other than any health warnings and messages that are already mandated - for most countries these will already be required in existing legislation).

In order that different products can be differentiated from each other, permitted text must include:

• product brand name and variant name
• name, address and contact details of manufacturer

Permitted text could also include:

• quantity of product in pack (e.g., 20 cigarettes)
• minimum age of sale
• information on quit smoking assistance or quit lines telephone numbers.
• place of origin or locally made statement
• duty tax paid mark
• fire risk statement¹
• recycling symbol
• no littering symbol

It is sensible to include a provision in the legislation which states that the plain packaging law does not prevent any text symbol or other mark that is required by other legislation. It is not recommended that legislation permits a recycling or no littering symbol as these can provide positive social associations for tobacco manufacturers.

4. Requirements for text

Based on the existing legislation in countries that have adopted plain packaging laws, requirements for the text should be made for:

1. The color
   • Pantone Cool Grey 2C as mentioned above
2. The typeface or font
   • Lucida Sans (Australia)
   • Helvetica (UK, Ireland and France because this matches the typeface for health warnings)
   • Normal, regular weighted text should be specified so that italics or bold text is not used.
   • Only alphanumeric characters, with an ampersand where applicable, should be permitted and text should be only in lower case letters save for the first letter of a word which may be in upper case.
3. The typeface point size
   • Point 14 - Brand name
   • Point 10 - All other text (including variant name, manufacturer’s name and address, etc.)
4. The location and orientation of text on the packet
   • It is sufficient for legislation to provide for the brand and variant name to appear twice on the outside surfaces of the packaging. The brand and variant name should be allowed on the front of the packet and on the top and/or bottom of the packet. This will allow identification of the brand in different storage or gantry methods.
   • Brand and variant name should be located in the middle of any surface on which they appear (or the space on that surface not taken up with health warnings). They should be orientated in the same way as any health warning that appears on the same surface.
   • All other text should appear only once on the packaging.
   • The only other text on the front surface should be the quantity of tobacco in the packet and the age of sale if these are permitted.
5. Length of brand and variant name
   • To limit the possibility of tobacco companies starting to use exceptionally long or complicated brand or variant names, the UK, France and Ireland have limited the length of the brand and variant name to just one line.

The French Decree provides a useful and succinct example of how all the above can be specified at Articles 1 and 2.

The Model Law Template uses all the provisions shown above.

5. Defining surfaces

The definitions must be approached with care:

1. Both the exterior and interior of packs should be regulated.
2. Individual packs, multipacks and ‘layers’ of packaging need to be regulated (there are examples of a single packet being in a further outer packet).
3. Where there are requirements for different surfaces (for instance the brand name must appear only on the front and top surfaces), then consideration needs to be given as to whether and how to define those surfaces.

The existing laws of countries that have adopted plain packaging approach these issues in different ways. An example is given in the Model Law Template included with this Toolkit.

6. Shape and type of packets

When standardizing the shape and type of packaging, it is recommended that the legislation requires the most common type of packaging that already exists on the market. The most common type of cigarette pack around the world is a rectangular (or cuboid) box of 20 cigarettes with a flip top lid.

However, governments considering plain packaging should look at what packaging already exists and is common on the market in their country. Some pack shapes may have positive associations for consumers, such as with the slim packs discussed above, so there may be good reasons to prohibit them. However, without good reason, prohibiting the most commonly used type of packaging for a particular category of product could be grounds for a legal challenge as being unnecessarily restrictive or leading to unnecessary costs for the tobacco manufacturers by forcing a change to their manufacturing processes. This is one reason why it is recommended that Ministry of Health officials conduct a market survey of the packaging that exists on the market in their country (see Guide 2.1 Evidence Review).

Cigarettes:

In Australia, packs must conform to specific dimensions with rectangular surfaces that have straight sides and right angles,² and so pack shape is defined in that way. This means that all individual packs must be virtually identical in shape and size. Beveled edges are prohibited. Therefore, this legislation requires what is, for many countries, the most common shape, size and opening of cigarette packs.

For EU states, under the EU TPD, packs must be cuboid³ but there is no specified dimension (although the full health warning must be fitted on the appropriate surfaces which means that ‘slim packs’ are not allowed – see part 7 below). This means there is some scope for tobacco companies to vary the dimensions of the cuboid shape and soft packs are permitted.

Just requiring a cuboid like the EU is a simpler means of specifying the shape but specifying dimensions and prohibiting beveled or rounded edges as Australia has done is recommended.

Shoulder box packs and soft packs are permitted for cigarettes in EU countries but not in Australia.

Other tobacco products:

In Australia there are no specific requirements on the shape, size or type of containers for other tobacco products.

For EU states, under the EU TPD, hand rolled or roll-your-own tobacco must be in a cuboid pack, a cylindrical pack or be in the form of a pouch. No further requirements have been put on the size of these packs or the shape of packs for other tobacco products.

7. Type of opening

 

As with the shape of packs, it is recommended that governments considering plain packaging look at what packaging already exists and is common on the market in their country.

In Australia, cigarette packs must have a “flip-top lid,” hinged at the back.⁴ No other opening is allowed.

In the EU, cigarettes in a pack that can be resealed or reclosed must have either flip-top lid hinged at the back, or a shoulder box hinged lid — “clam shell” — hinged at the back.⁵ This also permits soft packs that involve tearing open the paper seal and cannot be reclosed once opened. All these packs are common in some EU countries.

Unless soft packs or the clam shell / shoulder-box lid is particularly common in the market of a country considering plain packaging, it is recommended that the approach of Australia is followed, so that cigarettes are only permitted in hard packets with a flip top lid.

However, no legislation currently defines flip-top lid. It is a term commonly understood to mean the most usual type of cigarette pack opening.

There was some correspondence between the UK government and Imperial Tobacco about whether or not a novel type of opening for Lambert and Butler, called “Glide Tec” (which involves sliding a panel on the front of the pack with your thumb to make the very top of the pack flip open) can fall within the definition of a flip-top lid. As the diagram below shows, the Glide Tec opening is at the top and it flips open. Without a specific definition in legislation, it is arguable that different types of opening such as Glide Tec could fall within the term. Therefore, drafters should consider whether to either define flip-top lid (which can be difficult) or use a diagram within the legislation, such as the one shown above and included in the Model Law Template.

Glide tech opening used by Lambert and Butler.

8. Minimum size of pack or minimum size of health warning

It is important to regulate the size of tobacco packages. This is to prevent slim packs that look similar to lipstick or perfume cases, which are ostensibly aimed at women, and to prevent future pack design variations.

These slim packs usually have slim cigarettes contained in them.

Australia sets minimum and maximum dimensions for individual packets⁶ and also has minimum and maximum dimensions for the cigarette stick.

Under the EU Tobacco Products Directive, the graphic health warnings on cigarette packs must conform to minimum dimensions⁷ as well as being 65% of the front and back surfaces, which means that small cigarette packets are not permitted because they could not fit the full-size health warnings on them. Because of this, EU countries have so far not set minimum dimensions for pack sizes.

A decision to fully future proof the policy would mean following the Australian example, as this better protects against variations in the sizes of cigarette packs. This is the approach taken in the Template Model Law.

9. Material

While using a novel or different material to make packaging might be expensive for manufacturers, it is not inconceivable that this would be used to differentiate a particular product. It is therefore important to specify what material must be used to make the cigarette packs.

There is already some variation in the packaging material used for other types of product, such as loose tobacco or cigars. For instance, loose tobacco can come in tins, pouches, or boxes. Thus far, states adopting plain packaging have not put as many restrictions on the nature of the packaging for other tobacco products, but each government considering the policy should review the products on the market in that country and consider if it is appropriate to specify the material (as well as shape and size) of packs for products other than cigarettes.

Australia requires that cigarette packs must be rigid and made of only cardboard.⁸

The EU TPD requires cigarette packs to be made of “carton or soft material,”⁹ which does provide for some scope for variation. Only time will show if any significant variations in packaging material are developed in EU countries that adopt plain packaging.

It is recommended that countries follow the approach of Australia unless there are local reasons to take a different approach. The Template Model Law is drafted to require rigid cigarette packs made only of cardboard.

10. Linings in cigarette packs

The packaging processes for cigarettes use linings to fit the cigarettes into the packets. These linings are typically made of a silver foil with a white paper backing. The foil has small, embossed marks on them that are necessary to provide the friction used to insert the cigarettes into the packets. For this reason, these linings are permitted in the legislation of those states that have adopted plain packaging, so long as they are only for the “automated manufacturing process” and only if the linings conform to the specified requirements¹⁰ and do not have any branding on them.

It is recommended that similar provisions are used in any plain packaging law to avoid tobacco manufacturers arguing that the laws required unnecessary and expensive changes to their packaging processes.

 

It is important to specify that the lining is “only for the purpose of the automated manufacturing process.” In Australia, some products have been manufactured where the “lining” can act as a separate container so that the cigarettes can be removed from the standardized pack:

An additional clause to prevent this could be added to the legislation to confirm that, “the lining may not act as a separate removable container.” A clause of this nature appears in the Template Model Law at Article 7(2).

Another feature to appear in Marlboro packs in the UK after plain packaging was introduced is a plastic flap attached to the lid that seals the lining:

Unfortunately, it appears this does not breach the UK law as drafted (although it should be entirely white because it is internal packaging). However, it would not be permitted if the text of the Template Model Law is used because that draft text requires that all packaging must be rigid cardboard or, if it is the lining, a single sheet of paper backed silver foil.

  

11. Texture

Legislation should include requirements that surfaces are smooth and flat and contain no variations in texture, any ridges, or any embossing. All states that have adopted plain packaging to date have made similar requirements.¹¹

Existing packaging, especially for cigarettes, makes clever use of embossing and texture to make the packets more tactile. Failure to regulate the texture of the packet surfaces could lead to the continued and extended use of texture to create packs that are appealing to the touch and could undermine the aims of the legislation.

12. Wrappers

Most tobacco packets are sold with clear cellophane or plastic wrappers. Sometimes these wrappers have promotions or price discounts printed on them.

Wrappers should be required to be entirely clear and transparent, otherwise there is the risk of a loophole in the legislation that could allow the branding to appear on the wrappers (or without specific drafting in the law, the wrappers could fall within the definition of external packaging and so required to be Pantone 448C, which would be an excessive policy prescription).

All existing plain packaging legislation includes this requirement.¹²

A tear strip is used to open the wrappers, and these should also be regulated. In most existing legislation, they must either be clear or black and should be no more than 3mm wide.

Some manufacturers use the wrapper to print the bar code on, and there is no reason to prohibit this. Therefore, a single bar code should be permitted on the wrapper, so long as it does not cover the front surface of the packet or cover any health warning or other mandated information text (see below on requirements for bar codes).

13. Tabs for resealing pouches

Loose tobacco, such as tobacco for roll-your-own or hand-rolled cigarettes will often be packaged in pouches that can be resealed with a tab. To avoid these tabs being used for branding, they should be required to be a particular color or be clear and transparent.¹³

14. Sound and smell in the packaging

To future proof the legislation, a requirement that all tobacco packaging does not make a sound or contain or produce a smell that is not normally associated with tobacco packaging should be included. All existing legislation contains a clause of this nature.¹⁴

15. Pack must not change after sale

This provision prevents elements or features such as heat or other types of changing inks that could appear over time; fold-out sections; fluorescent or luminous inks; removable tabs; scratch panels; or any other feature that could change the shape or visual nature of the packaging after sale to the consumer. All existing legislation contains a clause of this nature.¹⁵

16. Inserts, onserts and other additional material

All additional materials, inserts, or onserts that are not part of the tobacco packaging or required to protect the product, should be entirely prohibited. Otherwise, there is a real risk that the measures can be fundamentally undermined by the inclusion of promotional materials, stickers, sleeves, collection cards, or other papers that are not part of the “packaging.” The only purpose of this type of additional material would be for advertising or promotion, or in some way to disguise the less appealing plain packs or health warnings, as it has no practical function as packaging.

There is also the possibility that tobacco companies, or retailers, will devise circumvention strategies that have been observed for graphic health warnings in some countries, such as sleeves or stickers to obscure the warnings or make the packs more attractive.¹⁶

Similarly, in Australia, cardboard sleeves have been sold or given away alongside tobacco products at the point of retail for purposes of covering the pack, and product lines such as stickers, sleeves, and boxes have been sold separately to tobacco products.¹⁷

All existing legislation in the UK, Ireland, France, Hungary, and Australia contains a clause that prohibits any inserts, stickers, or other additional materials.¹⁸ However, where sleeves that could cover the packs are sold separately from the product (even if alongside), then this has found not to be in breach of the law in Australia.

However, legislation in the UK, France, and Ireland permits packs of hand-rolling tobacco to contain rolling papers and/or filters. The Template Model Law follows this example, but the Ministry of Health should consider whether this is a practice that already exists in their country and if they wish to accommodate it in their legislation.

17. Prohibit features that would suggest an economic advantage

Following the introduction of plain packaging in Australia, manufacturers responded by offering one or more extra cigarettes (known as “loosies”) for the same price as a packet of 20. For instance, the “Peter Stuyvesant” brand name became “Peter Stuyvesant + Loosie.”

Article 13 of the EU TPD prevents this by requiring that:

The unit packets and any outside packaging shall not suggest economic advantages by including printed vouchers, offering discounts, free distribution, two-for-one or other similar offers.¹⁹

It is recommended that a similar provision is included in any new plain packaging laws.

18. Bar codes (and QR codes etc)

There must be a specific provision that permits a single bar code to appear on the packaging, any multipack or carton packaging, or the transparent wrappers to allow for stock control and sales.

However, there is a potential risk that these could be used in some way to either create an image or logo or make other links or associations.

The definition of a bar code (or what is understood as being a bar code in a technical sense) is quite broad and includes, for instance, quick response codes that can link smart phones to websites or other apps. Some types of bar code have been developed to contain images within them.

Existing legislation permits bar codes but restricts the nature and color of the bar code.²⁰

19. Allow for calibration marks

Calibration marks are required for the printing processes so that different layers of ink line up with each other. Without them, for instance, it would not be possible to print the graphic health warnings. There is a risk that these marks would be prohibited unintentionally and, therefore, should be specifically allowed.²¹

20. Allow for track and trace or unique identification marks

As with calibration marks, there is a risk that track-and-trace or identification marks might be prohibited unintentionally, and thus specific provision should be made to permit these where they are required in other legislation. Alternatively, if track-and-trace or identification marks are not already required, drafters should consider how this could be permitted if it is introduced at a later stage.

21. The appearance of individual products

All existing legislation regulates the appearance of cigarettes, and the Australian legislation also regulates the appearance of cigars.²² These all require individual cigarettes to be white with a matte finish, and the tip must be either white or imitation cork color. No other markings are allowed, except that Australia permits an alphanumeric code in a specified position in standard typeface. The UK, France, and Ireland permit text that identifies the brand and variant name in a specified position and standard typeface. The requirements under the Australian legislation are described in the official picture reproduced below.

Where the appearance of cigars is regulated, the legislation permits a single band to appear around the circumference of a cigar, which complies with the color scheme and text requirements of the plain packaging legislation.

22. Transitional arrangements

Manufacturers and retailers will have existing stock that does not comply with new packaging laws. Sufficient notice of when the law will come into force ensures that producers and retailers have sufficient time to sell existing stock before changing packaging to comply with the new law. This weakens any industry argument that it has suffered loss as a consequence of holding unsold stock. Australia allowed a three-month sell-through period for plain packaging, after which old packs could no longer be sold; the UK allowed a full year. The question of what a sufficient period of time is may differ from country to country. Officials should consider what periods have been allowed for previous packaging requirements, such as changes to health warnings.

23. Trademark saving provision

There are important legal reasons to ensure that tobacco companies can maintain their trademark registrations even if the use of those trademarks is severely restricted by plain packaging. There are international, regional, and national laws that oblige states to maintain trademark registrations. Therefore, most plain packaging legislation (for instance in Australia, the UK, and Ireland)²⁴ has a trademark-registration-saving provision that states that the legislation does not amount to a prohibition on the use of the trademarks in all circumstances, and that non-use of a trademark as a result of the legislation amounts to a good reason for non-use.

See trademark registration saving provisions:

• Australia - Tobacco Plain Packaging Act 2011, Section 28;
• UK - Standardised Packaging of Tobacco Products Regulations 2015, Regulation 13;
• Ireland - Public Health (Standardised Packaging of Tobacco) Act 2015, Section 5.

24. Country specific drafting issues

There are of course issues that need to be tailored to the particular country’s laws and that are common to all tobacco-control measures but, as ever, care has to be taken in getting these right. In particular, offenses, compliance, and enforcement provisions need to be dealt with. Countries with existing packaging and labeling legislation will already have experience with what offenses and enforcement provisions are effective:

• The offenses provisions and application to corporations / directors.
  The Guidelines for Implementation of Article 11 of the WHO FCTC include general provisions relating to liability and enforcement. For example, on the question of who is legally responsible for compliance with packaging and labeling measures, the Guidelines at paragraph 55 state:  

  “Parties should specify that tobacco product manufacturers, importers, wholesalers and retail establishments that sell tobacco products bear legal responsibility for compliance with packaging and labelling measures.” With respect to penalties, the Guidelines state: “In order to deter non-compliance with the law, Parties should specify a range of fines or other penalties commensurate with the severity of the violation and whether it is a repeat violation.” Moreover, “Parties should consider introducing any other penalty consistent with a Party’s legal system and culture that may include the creation and enforcement of offences and the suspension, limitation or cancellation of business and import licences.”

In the UK, for instance, a person who manufactures or imports a tobacco product that is intended for sale in the UK or sells a tobacco product in the UK (either in trade or to a consumer) that has retail packaging that does not comply with the Regulations is liable for a range of criminal penalties from a fine of up to £5000 to a jail sentence of up to two years. The UK law also stipulates that, if an offense is committed by a body corporate (a corporation or company), then the officers of the company, such as the managing director, may be prosecuted.²⁵ The prospect of a jail sentence for the company management means that compliance with tobacco-control laws in the UK is generally high.

The Australian Government introduced civil and criminal penalty provisions relating to non-compliant tobacco packaging and non-compliant tobacco products. These include fault-based offenses and strict liability offenses (where there is no need to show fault). Penalties for non-compliance can be imposed on retailers, manufacturers, suppliers or all of them.

• Powers of search, seizure and provision of information. 

  Effective enforcement is important for compliance with all tobacco-control measures. The FCTC Guidelines for Article 11 recommend,

  Parties should consider granting enforcement authorities the power to order violators to recall noncompliant tobacco products, and to recover all expenses stemming from the recall, as well as the power to impose whatever sanctions are deemed appropriate, including seizure and destruction of non-compliant products. Further, Parties should consider making public the names of violators and the nature of their offence.

  Making public the names of violators can be an effective measure....