Is Plain Packaging Lawful?

Plain packaging laws have been upheld as lawful by national, regional and international courts and tribunals which have found the arguments put forward by the tobacco companies to be flawed.

Plain packaging is recommended in the implementation guidelines to Articles 11 and 13 of the WHO Framework Convention on Tobacco Control – one of the most widely ratified international treaties in the world.

If adopted using appropriate national administrative, constitutional and legislative arrangements then there is no inherent reason why plain packaging should be found unlawful.

• Constitutional challenge in Australia High Court¹ – dismissed August 2011
• International investment arbitration claim² – dismissed December 2015
• World Trade Organization panel³ – dismissed June 2018 
• World Trade Organization Appellate Body – dismissed June 2020

• Five claims in the High Court of England and Wales⁴ – dismissed May 2016 
• Court of Appeal claim⁵ – dismissed December 2016

• Challenge in the Conseil Constitutionnel⁶ – dismissed January 2016
• Six challenges in the Conseil d’Etat⁷ – dismissed December 2016

• Challenge in the High Court⁸ – struck out November 2016

• Challenge to the EU Tobacco Products Directive in the EU Court of Justice⁹ – dismissed May 2016

• Injunction application to prevent plain packaging on snus tobacco¹⁰ – dismissed November 2017

The Campaign for Tobacco-Free Kids has produced summaries of the key rulings from the UK High Court case and the WTO dispute panel. 

3. Will tobacco companies try to sue every government that introduces plain packaging?

Litigation, and the threat of legal suit, is one of the strategies used by the tobacco industry to try to delay or prevent governments from introducing effective tobacco control policies. But each country has a different legal system, and most governments that have introducing plain packaging have not faced a legal challenge.

The tobacco industry continues to assert aggressively that plain packaging is unlawful in countries considering the policy, even though every industry legal challenge has so far been defeated. Governments should therefore be prepared.

4. Does plain packaging of tobacco products breach intellectual property laws?

The tobacco companies argue that once they have registered their trademarks, they have a ‘right to use’ those trademarks. But intellectual property rights deal with registration and trademark owners' right to stop others from using their marks. International rules do not give the owners of registered trademarks a ‘right to use’ them that overrides a states’ powers to regulate for the public good.

The World Trade Organization (WTO) dispute panel in the Australia - Plain Packaging case ruled that the WTO TRIPS agreement (that sets rules for intellectual property) gives no positive right to use a trademark and that plain packaging does not interfere with international trademark rights. The WTO Appellate Body upheld the panel ruling in full.

The court rulings dismissing the legal challenges in Australia, France, and the United Kingdom were also clear - plain packaging does not breach either domestic or international intellectual property laws and obligations.

As the High Court in Australia pointed out, plain packaging is no different in kind from other packaging or labeling requirements.

As far back as 1994, disclosed internal industry documents show that the tobacco companies had advice from their own lawyers and from the World Intellectual Property Organization (WIPO) that plain packaging would not contravene the international intellectual property rules.¹¹

The Director General of WIPO wrote to the Director General of WHO in 1995 to state “countries … remain free to regulate the sale of certain types of goods and the fact that a mark has been registered for such goods does not give the right to the holder of the registration to be exempted from any limitation of using the mark which may be decided by the competent authority of the country where the mark is registered.”¹²

5. Other legal issues in brief

What do the tobacco companies claim; and what have the courts ruled?

Below are some examples of what the courts have said in dismissing the tobacco companies’ legal claims against plain packaging. [Paragraph numbers from judgments given in square brackets.]

I. Plain packaging is not ‘justified’, ‘necessary’, or ‘proportionate’ because the evidence does not support that the policy will work to reduce smoking rates.

• UK High Court: “In my judgment the qualitative evidence relied upon by the [Government] is cogent, substantial and overwhelmingly one-directional in its conclusion” that plain packaging will be effective. [¶592]
• Australia High Court: Plain packaging requirements “are no different in kind from any legislation that requires labels that warn against the use or misuse of a product.” [¶181]

II. Plain packaging is an ‘expropriation’, ‘deprivation’, or ‘acquisition’ of the property rights in their trademarks.

• France Constitutional Court: “Thus an expropriation is not at issue here … but a limitation of the rights of property justified by the objective of protecting public health” [¶20 translated]
• Australia High Court: “Neither the Commonwealth nor any other person acquired any property.” [Official court summary]

III. Plain packaging is incompatible with intellectual property laws and the ‘right to use’ a trademark.

• UK High Court: “It is no part of international, EU or domestic common law on intellectual property that the legitimate function of a trade mark (i.e. its essence or substance) should be defined to include a right to use the mark to harm public health.”[¶40]

IV. Plain packaging breaches World Trade Organization rules and international treaties

• France Conseil d’Etat: The provisions in the WTO TRIPS and the Paris Convection “do not in any event prohibit States parties from exercising the option, which is always open to them, to adopt measures necessary to protect public health, which can be applied, where appropriate depending on the objective, to certain categories of products.” [¶22 translated]

More detail on what the courts have said when dismissing the tobacco industry legal claims can be found on the LEGAL ISSUES IN DETAIL pages.