Tobacco Plain Packaging Discussion Lights Up Again At WTO

The issue of plain packaging for tobacco products as a health measure has been smouldering at the World Trade Organization since Australia decided to implement legislation requiring plain packaging in 2012. Now, as more countries seek to enact similar legal provisions, some tobacco producing countries continue to try to stub them out, including at the WTO intellectual property committee.

Plain packaging draft legislation in Ireland and the United Kingdom sparked a new discussion on the issue at the Council for the WTO Agreement on Trade-Related Intellectual Property Rights (TRIPS), which took place on 24-25 February.

[Update: the European Union statement defending plain packaging is now available here [pdf].]

Other topics addressed during this TRIPS Council session included least-developed countries requesting an extension of the waiver granting them the ability not to enforce intellectual property rights on pharmaceutical products (IPW, WTO/TRIPS, 24 February 2015), and the issue of whether to make permanent a moratorium on non-violation complaints under the TRIPS Agreement.

In addition, the topic of women and innovation, introduced by the United States and Norway and co-sponsored by the European Union, Japan and Turkey, was also discussed, according to some sources, with an intervention from the World Bank.

During the TRIPS Council meeting, the EU said that on 17 February the legislative process resumed on Ireland’s draft bill, according to a WTO official speaking at a press briefing today.

Separately, on 21 January, the UK health minister confirmed the government’s intention to introduce plain or standardized packaging through regulations, the EU reported.

The UK regulations are expected to be introduced by the end of March and come into force at the same time as the European Tobacco Products Directive in May 2016, the WTO official said. The European Commission, which speaks on behalf of EU countries at the WTO, defended the UK and Irish initiatives at the TRIPS Council, he said.

Dominican Republic Cites Concerns, Suggests Alternatives

The Dominican Republic, Cuba, Honduras, Indonesia and Ukraine have challenged Australia’s plain packaging measures at the WTO Dispute Settlement Body on the grounds that those measures are inconsistent with WTO members’ obligations under TRIPS.

According to the Dominican Republic’s statement to the TRIPS Council, “By stripping all design elements from tobacco packaging and standardizing other packaging features, plain packaging measures undermine the basic features of trademarks and geographical indications (“GIs”) as protected under the TRIPS Agreement.”

Australia previously demanded that members not discuss the dispute settlement case in the TRIPS Council as it is now the responsibility of the DSB and therefore under WTO rules should not be discussed elsewhere. But that did not stop opponents of Australia’s measure from raising it again today.

The importance of the health objectives “is not disputed and is, indeed pursued in my country by my Government,” the delegate said in her statement. “However, the real-world empirical data emerging from Australia confirms that – contrary to the optimistic predictions by plain packaging proponents – plain packaging has failed to reduce smoking rates among the population in general and among youth in particular.”

“As was confirmed by the same real-world empirical data, plain packaging has undermined the vital differentiating role played by trademarks and GIs in promoting competitive opportunities in the marketplace. Market diversity is replaced by commoditization and price becomes the only meaningful factor that can be used to compete. We are seeing the detrimental impact of this in Australia, as consumers have increasingly shifted to cheaper low-end licit and illicit tobacco products,” she said. The delegate did not cite the source of data she referenced.

The Dominican Republic urged the UK and Ireland “to actively consider alternative measures that provide certain health benefits – unlike plain packaging – without violating WTO rules. In particular, we suggest raising the minimum legal purchase age to 21 and increasing taxes on tobacco products.” They encouraged both countries to delay consideration of proposals for plain packaging until the WTO ruling.

They also suggested a “pre-vetting” mechanism, which would “require the individual features of retail packaging to be approved before they are placed on the market.”

According to the WTO official, Nicaragua, Honduras, Cuba, Indonesia, Nigeria and Zimbabwe supported the Dominican Republic, while Australia, Uruguay, Canada, Norway, and New Zealand supported the UK and Ireland and rejected the call to wait for the WTO ruling. Australia deemed it inappropriate to comment on the disputes, the official reported.

WHO Support for Plain Packaging

The World Health Organization delivered a statement on the role of plain packaging, explaining that “Plain packaging of tobacco products is one of a number of complementary tobacco control measures that work together to protect human health.” Plain packaging complements other measures such as restrictions on advertising and promotion bans on misleading packaging, and health warnings on packaging, the WHO representative said.

Contrary to the Dominican Republic, the WHO representative said, “Empirical evidence from well qualified, respected and credible sources suggests that plain packaging will make restrictions on advertising and promotion, prohibitions on misleading packaging and health warnings more effective.”

“This evidence includes experimental studies, surveys and focus group studies that have tested the impact of different forms of plain packaging in different places and yielded consistent results,” he said.

Women and Innovation

According to sources, the discussion topic was broadly discussed by a number of countries, but little information was available on what was said. The WTO official said a number of countries contributed to the debate by sharing their national strategies to increase women’s participation in the labour market and innovation.

The World Bank also provided a statement [pdf] on the subject, and presented four aspects of the issue of women and innovation:

– The relationship between entrepreneurship and innovation in women-owned businesses.

– Inclusive innovation models that bring women into the design and delivery of products for low-income households

– Addressing the under-representation of women in innovation-related education

– Addressing barriers to women’s participation in the economy and trade in particular

On the rest of the agenda items, positions remained the same, according to sources.

This includes whether a possible permanent moratorium on non-violation complaints (complaints not relating to any direct WTO rules infringement) should apply to intellectual property-related disputes. The majority of WTO members are in favour of the indefinite extension, while the United States and Switzerland are opposed to it.

According to some sources, Japan holds a middle-ground position on the non-violation complaint issue. The WTO official said Japan is seeking to have a discussion on the modalities and scope of such non-violation complaints under TRIPS.

Amb. Mothusi Palai of Botswana, chair of the TRIPS Council, handed the chair over to Amb. Abdolazeez Al-Otaibi of Saudi Arabia at the end of the meeting, according to WTO.