Tobacco firms likely to challenge on grounds of intellectual property

Despite yesterday’s landmark Cabinet decision, it is likely to be some years before plain packaging on tobacco products becomes a reality.

Aside from the practical details of designing plain packets and the need for a run-in period, the measure is certain to be challenged in the courts. The stakes in any such litigation will be huge: as the first state in the European Union to introduce plain packaging, the Republic will be the focus of massive attention to see whether it comes up with a workable formulation of this latest anti-smoking measure.

Plain packaging doesn’t mean cigarettes will be told in blank white packs. In Australia, the first country to introduce the measure, in 2012, the requirement was for olive-coloured packs with hard-hitting health messages. Research had identified olive green as the least appealing colour, especially to young people.

Campaigners believe the removal of branding and logos will have a major effect on young people, who tend to be particularly open to marketing messages. However, the only evidence so far is from Australia, and even there it’s probably too early to tell. A study, one year after the measure was introduced, found a sharp increase in the number of smokers seeking help to quit. The tobacco industry claims the Australian experiment has failed, because there has been no fall-out in smoking rates while the incidence of smuggling has increased.

Brand name

Under the draft Irish proposals, the cigarette

itself must be plain white in colour, but the brand name could appear once on it. The Australian authorities, who have experience of tobacco firms trying to get around their rules, say only a serial number should be permitted on the cigarette.

The tobacco companies are investing heavily in public relations, in which several former Fine Gael figures are prominent. American lobbying has focused on Taoiseach Enda Kenny and his most senior Ministers.

The tobacco industry says plain packaging is not backed up by credible evidence, will cost jobs and is likely to facilitate a further increase in smuggling. At least 19 per cent of cigarettes are sold on the black market and the industry says the new measure will make counterfeiting easier.

The expected legal challenge will focus on the issue of intellectual property – the ground on which the industry fought the measure in the Australian courts, which ruled against it. Litigation on this ground is pending in the World Trade Organisation.

Here, the Law Society has controversially raised concerns about the possible effects of standardised packaging on the intellectual property rights of tobacco companies and consequently on Ireland's commercial reputation.

It claims the legislation would cause trademarks to lose their distinctiveness and could result in their invalidation “with consequential loss of property rights and brand owner value”.

The plan marks Minister for Health James Reilly’s chance to leave his mark on posterity. However, he is likely to be long gone before it takes effect.