Click here for The Counter Arguments that can be used to defeat this industry argument. 

With this argument, the tobacco industry tries to suggest that plain packaging of tobacco products will somehow fundamentally undermine the system of protections for intellectual property and lead to a lack of confidence from business and investors.

A JTI website states that:

The introduction of plain packaging will hugely undermine the protection of intellectual property rights and branding in Ireland. Going this route will introduce a fundamental element of doubt and unpredictability to Ireland’s business environment.¹

PJ Carroll (a subsidiary of BAT) in its submission to the Irish Joint Committee on Health and Children says:

The removal of legitimately held trademarks and other intellectual property rights would undermine and damage Ireland’s hard won position as the best country in the world for business as announced recently by Forbes magazine. If the Proposal is introduced, businesses across all sectors would be on notice that their trademarks are not safe in Ireland. [para. 2.7]

British American Tobacco (New Zealand), in response to the New Zealand consultation, states that plain packaging would cause:

lasting damage to New Zealand’s international reputation among its trading partners and foreign investors, who would rightly question the security of investments in New Zealand and its respect for international trade rules, intellectual property, and basic property rights. [p. 36]

Philip Morris’s submission to the Irish Joint Committee stated that:

Enacting legislation that completely undermines trademarks is not consistent with an aim to provide a robust IP protection regime in order to support foreign direct investment. Would Ireland Inc. be happy if other countries required plain packaging for alcohol in circumstances that in many countries alcohol has been identified as the number one public health risk? [p. 3]

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The Counter Arguments

• Big tobacco’s Intellectual property arguments and their flaws are set out in the Legal Issues in Detail pages of the Tools and Resources.
  
  
• The World Trade Organization (WTO) has categorically dismissed the complaints against Australia’s tobacco plain packaging including all arguments that it breached international intellectual property rules or trade mark rights. The WTO panel and the Appellate Body confirmed that plain packaging is a justified restriction on the use of trademarks.
  
  
• The court rulings dismissing the legal challenges in Australia, France and the United Kingdom have all been clear - plain packaging does not breach either domestic or international intellectual property laws and obligations.
  
  
• Plain packaging of tobacco places legitimate controls on the use of tobacco trademarks that advertise and promote a highly dangerous product. As the Australian High Court pointed out, tobacco plain packaging is no different in kind to the types of controls that are placed on the way other dangerous products that are advertised or sold. The system of intellectual property protections allows for this type of control. Businesses and investors accept and welcome legitimate regulatory controls in the public interest.
  
  
• There is no evidence that businesses other than the tobacco industry have concerns about the intellectual property regime in countries that have enacted plain packaging for tobacco, such as Australia, the UK, and France. The Framework Convention on Tobacco Control (FCTC) has been ratified by 182 countries. The implementing guidelines for Articles 11 and 13 of the FCTC recommend that government consider plain packaging of tobacco. This demonstrates that the international community has accepted plain packaging as a legitimate regulatory option.
  
  
• 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.