Attack on Australia: Tobacco industry challenges to plain packaging

Abstract

In 2011, the Australian Government passed landmark legislation requiring tobacco manufacturers to adopt 'plain packaging', a government-mandated design standardized across all brands of tobacco products. In response, plain packaging policy in Australia has faced multiple, simultaneous challenges from a global, well-resourced industry able to use all available fora to seek redress. Generalizing from the Australian experience, we analyze four types of challenges to plain packaging from the tobacco industry. We characterize three ways in which industry questions public health policies through international trade and investment law, on: (i) the intent or purpose of the policy; (ii) the economic consequences of it; and (iii) the regulatory authority behind it. We make recommendations and suggest that public health policymakers can know with some precision what attacks will be launched on tobacco control policies, and prepare their strategies and legislation accordingly.

A critical evaluation of the volume, relevance and quality of evidence submitted by the tobacco industry to oppose standardised packaging of tobacco products

“…First, our findings highlight how Better Regulation, with its requirement for public consultations and impact assessments, imposes costs on government departments in the earliest stage of policy development. Just as TTCs habitually launch legal challenges in the postdecision phase of policy-making,49 so too can they use their resource advantage to exploit Better Regulation processes by commissioning new research and submitting extensive and complex responses in the predecision phase of the policy process, effectively frontloading their opposition. The combination of a requirement for due diligence and the volume and nature of responses may have contributed to the 11-month delay in the publication of the Department of Health's consultation report.…”

Rhetoric and the law, or the law of rhetoric: How countries oppose novel tobacco control measures at the World Trade Organization

“…Much of the thrust of their analyses articulates the ways in which tobacco control legislation and regulations can be crafted to reduce the likelihood that such measures could be challenged as being inconsistent with trade law. (Jarman, 2013; Jarman, Schmidt, & Rubin, 2012; Liberman, 2013; McGrady, 2011; Mitchell, 2012; Mitchell & Sheargold, 2014)…”

Advancing progressive health policy to reduce NCDs amidst international commercial opposition: Tobacco standardised packaging in Australia

“…Within the fourth argument, the industry claimed the proposal would: (a) constitute an unnecessary barrier to trade, (b) deprive them of intellectual property rights by degrading the value of their trademarks and expropriate their investments, and (c) did not accord them fair and equitable treatment (Jarman, 2013). In particular, the industry argued that the proposal violated Australia’s constitution, and obligations under various trade and investment agreements.…”

“…The case of SP implementation in Australia is a significant public health advancement and as a result has been studied by several scholars. This includes an examination of the type and content of tobacco industry challenges in Australia (Jarman, 2013), a detailed description of the context and policy process (Chapman & Freeman, 2014), an analysis of online public comments on the proposal (Freeman, 2011), and an examination of the international legal context (Mitchell & Studdert, 2012; Voon & Mitchell, 2011). …”