Today's European Parliament Health Committee vote on plain packaging

The IPKat has just received this news from Christopher Morcom QC (Hogarth Chambers):

European Parliament Health Committee has voted against ‘Plain Packaging’ today -- but supported 75% size Health Warnings for tobacco products

It is time to report on further developments concerning the packaging of tobacco products. 

In April 2013 the IPKat reported on an IP conference held by the Law Society of Ireland on the subject of ‘Plain packaging and trade marks’.  A few weeks later, on 28 May, the Irish Government announced its decision to follow Australia in introducing legislation requiring cigarettes to be in ‘plain’, or ‘standardised’, packs, with a view to enforcement in 2014.

Plain packaged Kat

IPKat readers may recall that, on 19 December 2012, the EU Commission published proposals for a revised Tobacco Products Directive (‘TPD’).  The main features of this proposal included a requirement for cigarette packs to bear ‘health warnings’ covering a minimum of 75% of the front and back surfaces started from top edge.  The proposed TPD allowed the possibility for Member States to opt for ‘plain packaging’ if they wished to do so.  It should be noted that shortly after the publication of the EU proposal, the Irish Government launched a consultation (with an extremely short time being set for responses) on the TPD.  Among those who submitted responses was ECTA (the European Communities Trade Mark Association), whose response can be accessed here. 

Some three months later, in April 2013, MARQUES also published a position paper on the TPD, which was addressed to members of the European Parliament and Member States. 

As is now well known, there are outstanding challenges to the Australian plain packaging law, which was upheld by the Australian High Court.  Those include challenges (by Honduras, the Dominican Republic, Cuba and Ukraine) before the WTO, replying on certain provisions of the TRIPS Agreement and the Technical Barriers to Trade (‘TBT’) Agreement.  These may take two years or more before there is any decision.

The issues raised before the WTO, and in the EU, in relation in particular to the proposed enlarged health warnings and to proposals to extend the TPD to require ‘plain packaging’, concern not only provisions of TRIPS and TBT but also the general right to property, recognized in the European Convention for Human Rights and the EU Charter of Fundamental Rights.  Perhaps it was because of the seriousness of these issues, and the possibility that the WTO may rule against the Australian plain packaging law, that the EU Commission has, wisely, not shown any overt enthusiasm for a compulsory “plain packaging” provision in the TPD, and the UK Government, which had been  reported as including plain packaging legislation in the ‘Queen’s Speech’ for the current Parliamentary Session, has not yet decided to proceed with such legislation.

Back in the EU arena, the revised TPD has been the subject of many discussions, and decisions  at the European Parliament (EP)  and Council levels. At the EP level, the Rapporteur of the the Environment, Public Health and Food Safety Committee (’ENVI’), Ms Linda MacAvan MEP has proposed the inclusion of full mandatory plain packaging provisions in the TPD.  In June, five ‘Opinion’ Giving Committees of the EP (Legal Affairs, Internal Market, International Trade, Industry and Research and Agriculture) voted on the TPD.  All five Committees voted against ‘plain packaging’.  Four of them voted for 50% health warning labelling size, and one for 70% size, in both cases such warnings to be at the bottom of the pack faces. The Commission proposal places the health warning labelling at the top edge of the packs which would have has a clear impact on many figurative trademarks.

At Council level,  a General Approach  in the nature of a political compromise was adopted on 21 June. Among the agreed elements, there would be mandatory combined (picture and text) health warnings covering 65% . Member states may introduce more stringent rules on packaging (such as plain-packaging), subject to certain conditions (such as notification of the Commission). Plain packaging would therefore not be compulsory.

On 3 July 2013 a number of organisations concerned with Intellectual Property rights (APRAM, BMM,ECTA, MARQUES and UNION IP) called on the Member of the ENVI committee in a Joint Statement to vote against Plain Packaging, 75% size health warnings and arbitrary prohibition of trademarks and brands (as proposed in article 12 of the revised TPD).

The ENVI Committee met on the afternoon of  10 July, to discuss and vote on the TPD. Plain packaging was defeated at four occasions during the votes (in connection with article 13 and the recitals of TPD). Unfortunately, there was a vote in favour of the 75% health warning labelling from top edge (Article 9 of TPD), though with a narrow majority.  The next step at the EU level will be now the vote in Plenary session on the ENVI committee’s report, most probably in the week of 9 September this year. Proposed amendments against the 75% health warning size could still be possible. 

It is disappointing that the Government of Ireland has decided to go ahead with ‘plain packaging’ legislation for tobacco products. There are cogent arguments that such legislation would conflict with validly acquired intellectual property rights, and be contrary to a number of provisions in international agreements.  Moreover, as mentioned,  there are still the outstanding challenges pending before the WTO.  It must also be emphasised that the objections raised before the WTO and elsewhere, to health warnings covering 75% of the pack faces, will similarly conflict with the international treaty provisions to which reference has been made.  To date, it is thought, no compelling evidence has been produced that any such legislation, whether for plain packaging or for 75% health warnings,  would have any real effect over and above existing regulations, in preventing consumers from taking up or continuing smoking.  The EU Commission has mentioned “the current lack of real life experience, pending legal disputes regarding the plain packaging and serious concerns expressed by some stakeholders”.  It is suggested that Ireland should heed such advice and at least await the outcome of the WTO challenges.

Ths Kat knows what a sensitive and controversial issue this is; he is a deeply committed non-smoker but he is not convinced that interfering with branding is the best way of dealing with the health issues involved. He's sure that readers will have something to say about this.