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Plainly Constitutional: The Upholding of Plain Tobacco Packaging by the High Court of Australia

Published online by Cambridge University Press:  06 January 2021

Jonathan Liberman
Jonathan Liberman*
Affiliation:
McCabe Centre for Law and Cancer, a joint initiative of Cancer Council Victoria (CCV) and the Union for International Cancer Control
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Extract

In November 2011, Australia became the first country in the world to legislate for “plain packaging” of tobacco products. As of December 1, 2012, the packaging of tobacco products sold in Australia must be a standard, drab dark brown color; and the printing of tobacco company logos, brand imagery, colors, or promotional text on that packaging and on individual tobacco products is prohibited. While the Australian scheme is described as “plain packaging,” tobacco packaging is required to be far from “plain” in the ordinary sense of the word. The scheme requires large health warnings composed of graphics, warning statements and explanatory messages, and information messages.

Plain packaging of tobacco products—which has also been called “generic packaging” or “standardized packaging”—is not a new idea. It was proposed as far back as June 1986, when the Canadian Medical Association agreed to a motion in favor of its adoption.

Type
Article
Information
American Journal of Law & Medicine , Volume 39 , Issue 2-3 , June 2013 , pp. 361 - 381
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2013

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Footnotes

†

The author wishes to disclose that he is an employee of Cancer Council Victoria, which owns the Quitline trade mark and operates Quitline services. As explained in this paper, the tobacco companies argued (unsuccessfully) in their High Court challenges that Australia’s plain packaging regime confers benefits on CCV, and for this reason, among others, should have been struck down. The author is a member of the Australian Government’s Expert Advisory Group on Plain Packaging and an expert member of the Standing Tobacco Committee to the Intergovernmental Committee on Drugs. Both of these positions are unpaid. The author contributed to the application made by Cancer Council Australia for leave to make submissions in the High Court case as amicus curiae. The author is grateful to Kamala Rangarajan for helpful research and editorial assistance.

References

1 See generally Tobacco Plain Packaging Act 2011 (Cth) s 19 (Austl.) [hereinafter TPP Act]; Tobacco Plain Packaging Regulations 2011 (Cth) reg 2.2.1 (Austl.) [hereinafter TPP Regulations].

2 TPP Act, supra note 1; TPP Regulations, supra note 1.

3 PHYSICIANS FOR SMOKE-FREE CAN., PACKAGING PHONEY INTELLECTUAL PROPERTY CLAIMS 1, 8 (2009), available at http://www.smoke-free.ca/plain-packaging/documents/2009/packagingphoneyipclaims-june2009-a4.pdf. Further reference can be found in the plain packaging timeline included in this report.

4 WHO Framework Convention on Tobacco Control, Feb. 27, 2005, 2302 U.N.T.S. 166 [hereinafter FCTC].

5 Liberman, Jonathan et al., Plain Tobacco Packaging in Australia: The Historical and Social Context, in PUBLIC HEALTH AND PLAIN PACKAGING OF CIGARETTES 30-47, 40–42 (Voon, Tania et al. eds., 2012)Google Scholar.

6 PHYSICIANS FOR SMOKE-FREE CAN., supra note 3, at 21; Crosbie, Eric & Glantz, Stanton A., Tobacco Industry Argues Domestic Trademark Laws and International Treaties Preclude Cigarette Health Warning Labels, Despite Consistent Legal Advice that the Argument Is Invalid, 21 TOBACCO CONTROL 1, 6 (2012)Google Scholar.

7 Evidence to Senate Committee on Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Canberra, 13 September 2011, 4 (British American Tobacco Australia); British American Tobacco Australia Limited, Submission No 35 to Senate Legal and Constitutional Affairs Committee, Inquiry into Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011, 2 September 2011, 24 [7.1]; British American Tobacco Australia, Submission to the National Preventative Health Taskforce, BATA and the Australian Regulatory Landscape: Response to the Preventative Health Taskforce Technical Report 2 ‘Tobacco Control in Australia: Making Smoking History’, Jan. 2009; British American Tobacco Australia, Submission to the Department of Health and Ageing Public Consultation on the Exposure Draft of the Tobacco Plain Packaging Bill 2011, Submission on the Tobacco Plain Packaging Bill 2011, 6 June 2011; Imperial Tobacco Australia Limited, Submission to the Department of Health and Ageing Public Consultation on the Exposure Draft of the Tobacco Plain Packaging Bill 2011, 6 June 2011, 27 [6]; Japan Tobacco International, Submission to the Department of Ageing Public Consultation on the Exposure Draft of the Tobacco Plain Packaging Bill 2011, JTI's Response to the Australian Government's Consultation Paper on Tobacco Plain Packaging Bill 2011 Exposure Draft, 2 June 2011, 2 [1.4]; Philip Morris Limited, Submission to the Department of Health and Ageing Public Consultation on the Exposure Draft of the Tobacco Plain Packaging Bill 2011, Commoditising Tobacco Products through Plain Packaging Will Harm Public Health, Violate Treaties, and Does not Meet the Test of “Evidence-Based Policy”, June 2011, 26; Press Release, British American Tobacco Australia, BATA Heads to High Court Over Plain Packs (Sept. 5, 2011) available at http://www.bata.com.au/group/sites/bat_7wykg8.nsf/vwPagesWebLive/DO7WZEX6/$FILE/medMD8LE28A.pdf; see also Philip Morris Ltd., Submission to the National Preventative Health Taskforce, Australia: The Healthiest Country by 2020, 22 January 2009, 4 [1.2.1].

8 See Investor-State Arbitration – Tobacco Plain Packaging, AUSTL. GOV't ATT’Y-GEN.'s DEP’T, http://www.ag.gov.au/Internationalrelations/InternationalLaw/Pages/Tobaccoplainpackaging.aspx (last visited Mar. 2, 2013); see also Voon, Tania, Flexibilities in WTO Law to Support Tobacco Control Regulation, 39 AM. J.L. & MED. 199 (2013)Google Scholar.

9 Investor-State Arbitration – Tobacco Plain Packaging, supra note 8.

10 Consultation Document: Proposal to Introduce Plain Packaging of Tobacco Products in New Zealand, MINISTRY OF HEALTH NZ (July 23, 2012),http://www.health.govt.nz/publication/proposal-introduce-plain-packaging-tobacco-products-new-zealand.

11 Consultation Launched on Standardised Tobacco Packaging, DEP't OF HEALTH (Apr. 16, 2012), http://www.dh.gov.uk/health/2012/04/tobacco-packaging-consultation.

12 Abantika Ghosh, BJD MP Moves Bill on Tobacco Packaging, INDIAN EXPRESS (Nov. 21, 2012), http://www.indianexpress.com/news/bjd-mp-moves-bill-on-tobacco-packaging/1033792.

13 South Africa: Gov't to Follow New Australia Tobacco Laws - Report, ALLAFRICA (Aug. 16, 2012), http://allafrica.com/stories/201208160174.html.

14 TPP Act, supra note 1, at s 19; Tobacco TPP Regulations, supra note 1, at reg 2.2.1.

15 TPP Act, supra note 1, at ch 2 pt 2 div 1 s 20; TPP Regulations, supra note 1, at regs 2.3.1-.9, 2.4.1-.4 (other allowable marks include origin marks, calibration marks, measurement marks and trade descriptions, bar codes, fire risk statements, locally made product statements, name and address, and consumer contact telephone number).

16 TPP Act, supra note 1, at ch 2 pt 2 div 1 s 18(1).

17 Id. at ch 2 pt 2 div 1 s 18(2).

18 Id.

19 Id. at ch 2 pt 2 div 1 s 18(3); TPP Regulations, supra note 1, at reg 2.1.1.

20 TPP Act, supra note 1, at ch 2 pt 2 div 1 s 24.

21 Id. at ch 2 pt 2 div 1 s 25.

22 Id. at ch 2 pt 2 div 1 s 23 (other than those permitted in TPP Regulations, regs 2.6.1–.3).

23 Id. at ch 2 pt 2 div 1 s 26 (other than alphanumeric codes that comply with TPP Regulations 3.1.2, including requirements that they not constitute tobacco advertising and promotion or provide access to tobacco advertising and promotion).

24 TPP Regulations supra note 1, at reg 3.1.1.

25 See Parliamentary Secretary to the Treasury, Competition and Consumer (Tobacco) Information Standard 2011, 22 December 2011.

26 Id.

27 TPP Act, supra note 1, at ch 1 pt 1 s 3(1).

28 TPP Act, supra note 1, at ch 1 pt 1 s 3(2).

29 Explanatory Memorandum, Tobacco Plain Packaging Bill 2011 (Cth) 1 (Austl.).

30 Id.

31 Id.

32 The Explanatory Memorandum, supra note 29, cites a number of relevant research publications.

33 Id.

34 Id.

35 Id.

36 Id.

37 Id. at 1-2.

38 Id. at 2.

39 Id. at 14.

40 Id. at 12.

41 Id. at 12.

42 TPP Act, supra note 1, at ch 2 pt 2 div 1 ss 28-29.

43 Id. at ch 2 pt 2 div 1 s 28(3).

44 Explanatory Memorandum, supra note 29, at 15.

45 TPP Act, supra note 1, at ch 2 pt 2 div 1 s 29.

46 Id. at ch 1 pt 3 s 15(1).

47 Id. at ch 1 pt 3 s 15(2).

48 Explanatory Memorandum, supra note 29, at 11.

49 AUSTRALIAN CONSTITUTION S 75(iii).

50 Id. at S 76(i); Judiciary Act 1903 (Cth) s 30 (Austl.).

51 AUSTRALIAN CONSTITUTION S 51(xxxi).

52 JT Int’l SA v Commonwealth (Tobacco Plain Packaging Case) [2012] HCA 43, ¶ 167 (Austl.) (Justices Hayne and Bell, describe section 51(xxxi) as a “legislative power with respect to the acquisition of property which is abstracted from other heads of legislative power”).

53 See U.S. CONST. amend. I; Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c.11 (U.K.); S. AFR. CONST., 1996 § 16; Convention for the Protection of Human Rights and Fundamental Freedoms, European Convention on Human Rights art. 10, Nov. 4, 1950, 213 U.N.T.S. 221, 230.

54 Coleman v Power (2004) 220 CLR 1 ¶¶ 208-209 (Austl.); Lange v Austl. Broad. Corp. (1997) 18 CLR 520, 572 (Austl.).

55 Charter of Human Rights and Responsibilities (2006) (Vic) s 15 (Austl.); Human Rights Act 2004 (ACT) s 16 (Austl.).

56 Charter of Human Rights and Responsibilities (2006) (Vic) s 6 (Austl.); Human Rights Act 2004 (ACT) s 6 (Austl.).

57 This involved discussion between the parties under the guidance of a single judge of the Court, Justice Gummow, which included four Directions Hearings. See Transcript of Proceedings, Van Nelle Tabak Nederland BV & Anor v Commonwealth (High Court of Australia, Gummow J, 22 December 2011); Transcript of Proceedings, Philip Morris Ltd. v Commonwealth (High Court of Australia, Gummow J, 24 January 2012); Transcript of Proceedings, Philip Morris Ltd. v Commonwealth (High Court of Australia, Gummow J, 23 February 2012); Transcript of Proceedings, Philip Morris Ltd. v Commonwealth (High Court of Australia, Gummow J, 27 February 2012).

58 Transcript of Proceedings, 27 February 2012, supra note, 57. The Australian Government and BAT agreed to questions reserved and agreed facts which were presented to Justice Gummow at the February 27 Directors Hearing. No agreement was reached with either Imperial Tobacco or Philip Morris.

59 Id. The Attorneys-General of Queensland, the Australian Capital Territory and the Northern Territory intervened in both matters and made submissions supporting the validity of the scheme. See Attorney-General (Qld), Submissions on Behalf of the Attorney-General for the State of Queensland (Intervening), Submission in JT Int’l SA v Commonwealth, No. S409/2011, 12 April 2012; Attorney-General (ACT), Submissions for the Attorney-General of the Australian Capital Territory Intervener, Submission in JT Int’l SA v Commonwealth, No. S409/2011, 5 April 2011; Attorney-General (NT), Submissions of the Attorney-General for the Northern Territory (Intervening), Submission in JT Int’l SA v Commonwealth, No. S409/2011, 5 April 2011). Cancer Council Australia (CCA) sought leave to make submissions as amicus curiae. See Cancer Council Australia, ‘Submissions of Cancer Council Australia’, Submission in JT Int’l SA v Commonwealth, No S389/2011, 26 March 2012. Leave was not granted, the Court having “take[n] account of the fact” that “the matters [CCA sought] to canvass are adequately canvassed in the Commonwealth submissions.” Transcript of Proceedings, JT Int’l SA v Commonwealth (High Court of Australia, French CJ, 17 April 2012).

60 JT Int’l SA v Commonwealth (Tobacco Plain Packaging Case) [2012] HCA 43, ¶ 27 (Austl.).

61 See British American Tobacco Australasia Ltd, Submissions of the Plaintiffs, Submission in JT Int’l SA v Commonwealth, No. S389/2011, 26 March 2012, ¶ 71. In its writ of summons, BAT argued that section 15 “is, in substance and effect, no different from a law that provides that ‘This law only applies in the circumstances in which it is valid,’ which is not a valid exercise of legislative power.” British American Tobacco Australasia Ltd., Writ of Summons, Submission in British Tobacco Australasia Ltd. v Commonwealth, No. S389/2011, 1 Dec. 2011, ¶ 11(b) (Austl.).

62 Tobacco Plain Packaging Case, ¶ 27.

63 Australian Gov't Solicitor, Submission of Defendants, Submission in British American Tobacco Australasia Ltd. v Commonwealth, No. S389/2011, 27 Feb. 2012, at 1-8. The Anti-Cancer Council of Victoria operates as “Cancer Council Victoria.” Beyond 2000, CANCER COUNCIL VICTORIA, http://www.cancervic.org.au/about/70-years/history-2000s (last visited Mar. 27, 2013).

64 It is significant that BAT agreed that packaging and appearance perform this promotional role, i.e., that their functions go beyond distinguishing between tobacco products and providing “information” to consumers. See Davison, Mark, Plain Packaging and the TRIPS Agreement: A Response to Professor Gervais, AUSTL. INTELL. PROP. J. (forthcoming 2013)Google Scholar.

65 Australian Gov't Solicitor, supra note 63.

66 Id.

67 Id. It should be noted that the Commonwealth sought to put a large volume of material before the Court on the basis of which it sought to argue that the Court should make a number of findings of “constitutional fact” about the grave harm caused by smoking tobacco products, the promotion of tobacco products by retail packaging, and the impact of health warnings. See Commonwealth of Australia, Submissions of the Commonwealth of Australia, Submission in Tobacco Plain Packaging Case, No. S389/2011, 5 April 2012, ¶¶ 13-42 [hereinafter Commonwealth Submission]. These facts were said not to “form issues between parties to be tried like [other] questions [of fact],” but “simply involve information which the Court should have in order to judge properly of the validity of this or that statute.” Id. ¶ 13. The tobacco companies opposed the introduction and consideration of this material, and the Court declined to accept it. It proved unnecessary for the resolution of the challenges.

68 JT Int’l SA v Commonwealth (Tobacco Plain Packaging Case) [2012] HCA 43, ¶ 25 (Austl.).

69 Id. ¶ 26.

70 Commonwealth Submission, supra note 67, ¶ 5.

71 Tobacco Plain Packaging Case, ¶ 27.

72 Id. at ¶ 169; see also id. ¶ 42 (French, CJ); id. ¶¶ 131-132, 149-154 (Gummow, J); id. ¶¶ 278-79; id. ¶¶ 302-305 (Crennan, J); id. ¶¶ 364-65 (Kiefel, J).

73 Id. ¶ 164; see also id. ¶ 42 (French, CJ). Justice Gummow commented on the differences between section 51(xxxi) and the “taking” clause in the U.S. Constitution. Id. ¶¶ 109-118. His Honor wrote that the effect of U.S. jurisprudence is to accept that the “taking” clause may be engaged without what the decisions of the High Court would classify as an “acquisition.” Id. ¶ 115. He noted that “the greater scope this gives to the Fifth Amendment has been tempered by a doctrine permitting ‘regulation’ which does not amount to a ‘taking.’” See also id. ¶ 355 (Kiefel, J).

74 Chief Justice French held that the imposition of controls by the TPP Act “may be said to constitute a taking in the sense that the plaintiffs’ enjoyment of their intellectual property rights and related rights is restricted,” but that there was no acquisition. Id. ¶ 44. Justice Gummow held that there was “sufficient impairment, at least of the statutory intellectual property of the plaintiffs, to amount to a ‘taking,’ but there is no acquisition of any property.” Id. ¶ 101; see also id. ¶¶ 138-141. Justices Hayne and Bell wrote that the proposition that the TPP Act would take the tobacco companies’ property “seems hard to deny” “[o]n the face of it,” but that its accuracy “need not be examined because the relevant constitutional question is whether there has been an acquisition of property, not whether there has been a taking.” Id. ¶ 164. Justice Crennan appeared to conflate the concepts of taking and acquisition. Her Honor wrote that restricting or extinguishing the tobacco companies’ rights to use their property for advertising or promotional purposes “with a possible consequential diminution in the value of property or the associated businesses, did not constitute a taking amounting to an indirect acquisition.” Id. ¶ 296.

75 Id. ¶¶ 169-171. The companies’ arguments drew on a dissenting view expressed by Justice Deane in Commonwealth v Tasmania, “that the absence of a material benefit of a proprietary nature did not conclude whether there had been an acquisition of property in that case.” Id. ¶ 172; see Commonwealth v Tasmania (“Tasmanian Dam Case”) [1983] HCA 21 (Austl.). The arguments also drew on the observation by Justices Deane and Gaudron in Mutual Pools & Staff Pty Ltd v Commonwealth that a person must obtain “at least some identifiable benefit or advantage relating to the ownership or use of property.” Id. ¶¶ 173 (citing Mutual Pools & Staff Pty Ltd v Commonwealth [1994] HCA 9 (Austl.)) (emphasis added).

76 Tobacco Plain Packaging Case, ¶ 170.

77 Id. at 1-2.

78 Id. at 1.

79 British American Tobacco, Submissions of the Plaintiffs, Submission in British American Tobacco Australasia Ltd. v Commonwealth, No. S389/2011, 26 March 2012, ¶ 46(b), available at http://www.hcourt.gov.au/assets/cases/s389-2012/BAT_Plf.pdf.

80 Id. ¶ 46(d).

81 Id. ¶ 46(e).

82 JT Int’l SA, Plaintiff's Submissions, Submission in JT Int’l SA v Commonwealth, No. S409/2011, 26 March 2012, ¶ 34, available at http://www.hcourt.gov.au/assets/cases/s409-2011/JT_Plf.pdf.

83 Id. ¶ 35.

84 Id. ¶ 36.

85 Id. ¶ 37.

86 Philip Morris Ltd., Philip Morris Ltd.'s Submissions (Intervening), Submission in British American Tobacco Australasia Ltd. v Commonwealth, No. S389/2011, 26 March 2012, ¶ 5, available at http://www.hcourt.gov.au/assets/cases/s389-2012/BAT_Phillip.pdf. Philip Morris went so far as to argue that the Act “is an Act for the acquisition of control of the [tobacco companies’] Property: that is its purpose.” Philip Morris Ltd, Philip Morris Ltd's Reply Submissions, Submission in British American Tobacco Australasia Ltd. v Commonwealth, No S389/2011, 11 April 2011, ¶ 2.

87 Philip Morris Ltd., Philip Morris Ltd's Submissions (Intervening), supra note 86, ¶ 32.

88 Id.

89 JT Int’l SA v Commonwealth (Tobacco Plain Packaging Case) [2012] HCA 43, ¶ 248 (Austl.).

90 Id. ¶ 348 (Kiefel, J); see also id. ¶¶ 36, 40, 43 (French, CJ); ¶105 (Gummow, J).

91 Id. ¶ 81.

92 Id. ¶ 138.

93 Indeed, counsel for Japan Tobacco described a tobacco pack as “our billboard,” comparing it to a “billboard as you drive from the airport.” Transcript of Proceedings, 17 April 2012, supra note 59.

94 Tobacco Plain Packaging Case, ¶ 286.

95 Id. ¶ 295.

96 Id. ¶ 306.

97 Id. ¶ 356.

98 Id.

99 Id. ¶ 372.

100 Id. ¶ 47 (citing British Medical Association v Commonwealth (1949) 78 CLR 201, 270 (Austl.)); see also id. ¶ 167 (Hayne & Bell, JJ).

101 Id. ¶ 295.

102 Id. ¶ 357.

103 Id. ¶ 181.

104 Id. ¶ 188.

105 Id.

106 Id.

107 Id. ¶ 301.

108 Id. ¶ 316.

109 The comparison with Ratsak was made on the first morning of the hearing by Justice Crennan and became somewhat of a running theme through the hearing. See Transcript of Proceedings, 17 April 2012, supra note 59, at 61.

110 Id.

111 Id.

112 Id.

113 Id. at 56.

114 Id. at 61.

115 Id. at 63.

116 Id. at 62.

117 Id. at 57.

118 Id. at 62.

119 Id. at 63.

120 Id.

121 Transcript of Proceedings, JT Int’l SA v Commonwealth (High Court of Australia, 18 April 2012) 5.

122 JT Int’l SA v Commonwealth (Tobacco Plain Packaging Case) [2012] HCA 43, ¶ 182 (Austl.).

123 Id. ¶ 301 (emphasis added).

124 Id. ¶ 44.

125 Transcript of Proceedings, supra note 121, at 99.

126 Tobacco Plain Packaging Case, ¶ 290.

127 Id. ¶ 291.

128 Id. ¶ 293.

129 Id. ¶ 284.

130 Id. ¶ 35.

131 Id. ¶ 43.

132 Id. ¶ 78; see also id. ¶¶ 88, 107, 137 (Gummow, J).

133 Id. ¶ 200.

134 Id. (emphasis added).

135 Id. ¶ 216.

136 Id. ¶ 212.

137 Id. ¶ 218.

138 Id. ¶ 227.

139 Id. ¶ 193.

140 Id.

141 Id. ¶ 241.

142 Commonwealth Submission, supra note 67, ¶ 7.

143 Id.

144 Id.

145 Id. ¶ 8.

146 Id.

147 JT Int’l SA v Commonwealth (Tobacco Plain Packaging Case) [2012] HCA 43, 2 (Austl.).

148 Tobacco Plain Packaging Act 2011 (Cth) ch 1 s 3 (Austl.).

149 Explanatory Memorandum, supra note 29, at 10. Section 14 of the Act provides for the operation of the Act on alternative or supplementary heads of legislative power (corporations (§ 51(xx)); international and interstate trade and commerce (§ 51(i)); and Territories (§ 122)) “[i]n case there is any doubt that all of the provisions are fully supported by the external affairs power.” Id. at 11.

150 TPP Act, supra note 1, at ch 1 s 4.

151 Explanatory Memorandum, supra note 29, at 2.

152 Explanatory Memorandum, supra note 29, at 14.

153 TPP Act, supra note 1 at ch 1 s 3(2).

154 WHO FRAMEWORK CONVENTION ON TOBACCO CONTROL, Guidelines for Implementation of Article 11: Packaging and Labelling of Tobacco Products, in GUIDELINES FOR IMPLEMENTATION 49, 59 (2011), available at http://whqlibdoc.who.int/publications/2011/9789241501316_eng.pdf.

155 WHO FRAMEWORK CONVENTION ON TOBACCO CONTROL, Guidelines for Implementation of Article 13: Tobacco Advertising, Promotion and Sponsorship, in GUIDELINES FOR IMPLEMENTATION 89, 95-96 (2011), available at http://whqlibdoc.who.int/publications/2011/9789241501316_eng.pdf.

156 Commonwealth Submission, supra note 67, ¶ 37.

157 Id. It stated: “That Australia is as yet the first Party to the FCTC to act on these recommendations does not detract from the global significance of the adoption of them.” Id.

158 Commonwealth Submission, supra note 67, at ¶ 7.

159 See, e.g., Evans, Simon & Bosland, Jason, Plain Packaging of Cigarettes and Constitutional Property Rights, in PUBLIC HEALTH AND PLAIN PACKAGING OF CIGARETTES: LEGAL ISSUES 48, 48–80 (Voon, Tania et al. eds., 2012)Google Scholar.

160 In welcoming the High Court's decision, the Australian Attorney-General, Nicola Roxon, who had been the Health Minister responsible for the development and introduction of the legislation before becoming Attorney-General, said that that it showed that Big Tobacco can be “taken on and beaten.” Nicola Berkovic, High Court Clears Way for Plain Packaged Cigarettes to Be Sold in Australia, THE AUSTRALIAN (Aug. 15, 2012), http://www.theaustralian.com.au/national-affairs/high-court-clears-way-for-plain-packaged-cigarettes-to-be-sold-in-australia/story-fn59niix-1226450705366.

161 JT Int’l SA v Commonwealth (Tobacco Plain Packaging Case) [2012] HCA 43, ¶¶ 42-44 (Austl.)

162 WHO Framework Convention on Tobacco Control, Decision: Punta Del Este Declaration on the Implementation of the WHO Framework Convention on Tobacco Control, COP-4(5) (Nov. 19, 2010); McGrady, Benn, Implications of Ongoing Trade and Investment Disputes Concerning Tobacco: Philip Morris v Uruguay, in PUBLIC HEALTH AND PLAIN PACKAGING OF CIGARETTES 173, 192 (Voon, Tania et al. eds., 2012)Google Scholar; Voon, Tania & Mitchell, Andrew D., Implications of International Investment Law for Plain Tobacco Packaging: Lessons from the Hong Kong-Australia BIT, in PUBLIC HEALTH AND PLAIN PACKAGING OF CIGARETTES 137, 158 (Tania Voon et al. eds., 2012)Google Scholar; Voon, Tania & Mitchell, Andrew D., Implications of WTO Law for Plain Packaging of Tobacco Products, in PUBLIC HEALTH AND PLAIN PACKAGING OF CIGARETTES 109, 127 (Voon, Tania et al. eds., 2012)Google Scholar; McGrady, Benn, Revisiting TRIPS and Trademarks: The Case of Tobacco, 9 TRANSNAT'L DISP. MGMT., no. 5, 2012CrossRefGoogle Scholar, at 6. See generally WORLD HEALTH ORG., CONFRONTING THE TOBACCO EPIDEMIC IN A NEW ERA OF TRADE AND INVESTMENT LIBERALIZATION (2012), available at http://whqlibdoc.who.int/publications/2012/9789241503723_eng.pdf.