BREAKING NEWS: European Parliament says ‘No’ to plain packaging for tobacco products

Via veteran IP enthusiast and Katfriend Christopher Morcom QC (Hogarth Chambers) comes the following news from Strasbourg:

"Today the European Parliament, in plenary session, has voted on the proposed revision of the Tobacco Products Directive, which was first published in December 2012.

Studying today's vote
with 'wrapped' attention ...

An important matter, on which the Parliament voted, was an amendment to introduce a requirement for ‘plain packaging’ for tobacco products. To date, only Australia has introduced such a requirement; their law is now subject to challenge before the World Trade Organization, by five countries (Ukraine, Honduras, Cuba, Dominican Republic, and Indonesia). The amendment was today rejected. This rejection is greatly to be welcomed. ‘Plain packaging’ requirements would be a very serious invasion of intellectual property rights, in this instance trade marks. Tobacco products remain legal products, and such requirements would have the effect of prohibiting companies from using valuable trade marks, for which protection has been legally obtained, and on which customers rely when making purchases. Registered trade marks, and the goodwill established by their use over many years, are undoubtedly property rights, and thus entitled to protection under the EU Charter of Fundamental Rights (Art 17) and the European Convention on Human Rights (First Protocol, Art 1). The rejection of this amendment by the European Parliament should be heeded by governments, such as the Irish and UK Governments, and the Scottish Parliament, which are or have been considering the introduction of plain packaging requirements for tobacco products.

Plain packaging at its best ...?

Another aspect of the vote of the European Parliament concerned the size of health warnings. The Parliament voted to adopt proposals requiring such warnings to cover no less than 65% of the front and the back of the packs, from the top downwards. These requirements, like the plain packaging requirements, are a major invasion of intellectual property rights; they have essentially the same effect, and are unjustifiable restrictions on the exercise of such rights. It might perhaps be possible to justify a requirement for 50% health warnings, on the lower half of the pack faces, but one cannot help wondering if even that is necessary. Health warnings, under existing laws, are so very prominent that only the blind can fail to notice them. It must be questionable whether the excessive requirements now sought to be imposed would have any beneficial effect, or are really necessary.

It is understood that the Rapporteur of the Health Committee has received the mandate from the Parliament to commence negotiations with the Commission and the Council. We must now wait to see the final Directive, which is expected to be adopted in early 2014".

On the same subject see the MARQUES Class 46 weblog here.
Christopher Morcom's earlier pieces here, here, here and here
A contrary view from Professor Mark Davison here
The Australian position here, here and here