Australian Tobacco Plain Packaging Upheld In Decision At WTO 28/06/2018 by William New, Intellectual Property Watch 2 Comments Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)A World Trade Organization dispute settlement panel has ruled that Australia’s law requiring tobacco products be sold in plain packages in the interest of public health does not violate the country’s obligations at the global trade body. In Australia and increasingly in other countries, tobacco must be sold with no trademarks or marketing visible other than name. The landmark dispute was seen by some as at the nexus of economic and health interests for the WTO. Cases were brought against Australia by Honduras, the Dominican Republic, Cuba and Indonesia, and later folded into one. The decision was made public by WTO today. The case was called, “Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging” (DS435, DS441, DS458 and DS467). The 900-page (well over 1,000 pages with annexes) decision and WTO information about the case are available here. The panel found that the complainants had not demonstrated that these measures are inconsistent with Australia’s obligations under the cited provisions of the WTO’s Agreement on Technical Barriers to Trade, (TBT Agreement), the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and, in respect of a claim by Cuba, the General Agreement on Tariffs and Trade (GATT) 1994. Under WTO rules, the complainants normally have 60 days to appeal the decision on legal grounds. Many believe an appeal will be forthcoming. “This is probably going to be reviewed by the Appellate Body,” said a WTO spokesperson. A party could possibly ask for a special Dispute Settlement Body meeting as well. [Update: the Australian government has issued a reaction to the decision, available here.] The large decision document shows the extensive analysis and effort on all sides in this years-long case. It details the arguments of the parties at every stage, and breaks down the meaning and definitions of all related concepts, such as the impact of the measures, and the possibility of achieving results using alternatives to the measures (such as taxation or new marketing campaigns). The decision also includes a full section (beginning with 7.3, p. 588) of thorough analysis on the TRIPS Agreement, addressing issues such as articles of the agreement, the meaning of trademark, registration of trademark, and obstacle to registration in TRIPS, and issues of distinctiveness, and reaches conclusions on whether there is violation. The neighbouring World Health Organization weighed in on the WTO decision, saying: “The ruling clears another legal hurdle thrown up in the tobacco industry’s efforts to block tobacco control and is likely to accelerate implementation of plain packaging around the globe.” Six other countries have implemented plain packaging laws (Hungary, Ireland, France, New Zealand, Norway and the United Kingdom), another six have passed laws yet to be implemented (Burkina Faso, Canada, Georgia, Romania, Slovenia and Thailand) and a number of other countries are examining the policy, according to WHO. The WHO and the WHO Framework Convention on Tobacco Control (WHO FCTC) Secretariat provided the WTO panel with a joint submission or amicus brief. Tobacco plain packaging is one of the recommendations of the FCTC. Australia’s law went into effect in 2012, and it has claimed a positive impact on reduction of use of tobacco products in the country. Other countries have taken notice and some followed suit. But there has been a sense of waiting for this WTO case to play out before things could break either way. The case was at times contentious as Australia accused the tobacco industry of “regulatory chill” in 2014 (IPW, WTO/TRIPS, 20 November 2014), and several tobacco-producing countries sought allies among those who support IP rights, those who oppose trade barriers, and those who would support their local farmers. But failure by the tobacco industry to defeat the Australian measure through a bilateral agreement with Hong Kong, and a key case involving Uruguay over a tobacco company decided in 2016 helped open the door on plain packaging (IPW, Latin America/Caribbean, 21 July 2016). A small turning point also was when Australia prevailed on a claim that the topic should not be discussed in the WTO Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS) or other committees based on a WTO policy that issues under dispute settlement should be off-limits for discussion. That further took the issue off the table at WTO. IP-Watch charted progress on tobacco plain packaging measures in Africa while the WTO case was dragging on (IPW, Africa, 19 May 2015). The outcome had been expected to a degree since this time last year when the interim panel report surfaced (IPW, WTO/TRIPS, 5 May 2017). For IP-Watch stories over the years since the initial Australian law in 2011, see here. 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