My general attitude to the plain packaging legislation is that it can do no harm if your interest is in curtailing cigarette consumption. It might not be very effective but it might be somewhat effective. So I support the legislation. The carcinogen producers do not, of course, support it which makes me suspicious that it might, in fact, be effective. I am sure they are concerned with contagion effects of successful legislation spreading to other countries. They might also be concerned that barriers to entry to their industry might be reduced fostering competition and reduced prices. This would only concern me if, following any price fall, the government did not act to raise tobacco taxes to (or above) pre-entry price levels. Reduced profits to the large carcinogen producers would be a most welcome outcome from my viewpoint. Less profits, reduced opportunities to spread lies and reduced incentives to sell a product which kills people.
The carcinogen producers are attacking the Australian legislation in Australia via a High Court challenge to its constitutionality. They are also challenging the proposal on the grounds that, with Phillip Morris having shifted operations to Hong Kong (how convenient!), the plain packaging move violates a free trade agreement signed with Hong Kong in 1993. Now, in addition, the carcinogen producers are being joined by some developing nations who allege that the legislation violates the TRIPs rules of the WTO that provide protection of trademarks on internationally-traded products. They claim that introducing the Australian legislation will cost jobs in their local tobacco industries. This is again a claim that makes me suspicious that the legislation is at least viewed by influential others as being potentially effective. I hasten to add that not all developing countries support this attack – Brazil and Uruguay strongly support the Australian legislation – indeed Uruguay has had battles with Phillip Morris itself on related issues. I know little about WTO trademark law and TRIPs but suspect that even if the legislation is inconsistent with these laws that a case for the legislation could be sustained under other GATT regulations that allow trade restrictions where a producer is dangerous to human health. And that is something cigarettes certainly are.
The ethics of the developing country argument is that the livelihoods of poor farmers need to be balanced against the health benefits that Australians might enjoy if they smoke less. I find this argument weak. The main health costs of cigarette smoking over coming decades will be in developing countries not in developed countries – most of the 5 million people killed by tobacco each year are in developing and middle income countries. The big future fight should be to secure lower levels of smoking in developing countries. This will not be assisted if these countries seek to protect local tobacco industries. A successful development strategy should not involve dependence on outputs that kill the citizens who are supposed to have their economic opportunities improved.
I hope the government holds its nerve on this one. There is a lot of opposition to the plain packing legislation from the carcinogen producers, the developing countries mentioned and, of course, those right-wing interest groups that derive part of their funding from the firms producing the carcinogens – the civic-minded Institute of Public Affairs has consistently challenged the legislation. But this is probably a fight that needs to occur. Australia is performing an international public service by initiating this fight and by pursuing it doggedly. The Gillard Government – and the Coalition who have indicated their support for the legislation – deserve our appreciation for the determination they have shown.
BTW I’d be interested if readers had specific knowledge about TRIPs that they could contribute. I am working on the plain packaging issue at present.