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The Case of Plain Packaging of Cigarettes

Published online by Cambridge University Press:  20 January 2017

Alberto Alemanno  and
Enrico Bonadio
Alberto Alemanno
Affiliation:
HEC Paris, France
Enrico Bonadio
Affiliation:
University of Abertay Dundee, United Kingdom
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Abstract

This section is devoted to giving readers an inside view of the crossing point between intellectual property (IP) law and risk regulation. In addition to updating readers on the latest developments in IP law and policies in technological fields (including chemicals, pharmaceuticals, biotechnology, agriculture and foodstuffs), the section aims at verifying whether such laws and policies really stimulate scientific and technical progress and are capable of minimising the risks posed by on-going industrial developments to individuals’ health and safety, inter alia.

Type
Reports
Information
European Journal of Risk Regulation , Volume 1 , Issue 3 , September 2010 , pp. 268 - 270
Copyright
Copyright © Cambridge University Press 2010

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References

1 The report is available on the Internet at <http://www.preventativehealth.org.au/internet/preventativehealth/publishing.nsf/Content/discussion-technical-1> (last accessed on 7 July 2010).

2 In a 1995 report entitled “The Tobacco Industry and the Costs of Tobacco-Related Illness” (released by the Australian Senate Community Affairs References Committee) the following conclusion was reached: “The Committee received a range of often conflicting evidence on the efficacy of generic packaging. While some evidence suggested that generic packaging would reduce the attractiveness of cigarettes for children, other evidence raised some doubts concerning the effectiveness of this approach. The Committee believes that more research needs to be undertaken into the role generic packaging could play in an integrated strategy addressing the problem of adolescent smoking. The Committee considers that, on the basis of the evidence received, there is not sufficient evidence to recommend that tobacco products be sold in generic packaging.” (para. 3.54). The report is available on the Internet at <http://www.plain-packaging.com/Australia> (last accessed on 7 July 2010). Moreover, in the UK Parliamentary session of 25 June 2009 the Minister of State for Public Health, Ms Gillian Merron, was reported to have said: “There is some evidence that branding on cigarette packs may increase brand awareness among young people but it is not conclusive. […] While there is also evidence to suggest that branding on packs may mislead customers about the relative safety of different tobacco products, that too is very limited. No studies have been undertaken to show that plain packaging of tobacco would cut smoking uptake among young people or enable those who want to quit to do so. Given the impact that plain packaging would have on intellectual property rights, we would undoubtedly need strong and convincing evidence of the benefits to health, as well as its workability, before this could be promoted and accepted at an international level – especially as no country in the world has introduced plain packaging”. This excerpt is available on the Internet at <http://www.publications.parliament.uk/pa/cm200809/cmpublic/health/090625/pm/90625s09.htm> (last accessed on 7 July 2010)

3 For a first analysis of the compatibility of plain packaging with the trademark-related provisions of the TRIPs Agreement see Mc-Grady, Benn, “TRIPs and Trademarks: The Case of Tobacco”, 3(1) World Trade Review (2004), pp. 53–82.CrossRefGoogle Scholar

4 See de Carvalho, Nuno Pires, The TRIPs Regime of Patent Rights (The Hague: Kluwer 2005), pp. 119 et sqq.Google Scholar

5 The Doha Declaration on the TRIPS Agreement and Public health was adopted on 14 November 2001 by the WTO Ministerial Conference. States seeking to adopt plain packaging should also stress that each country has the right to decide the level of health protection that it considers appropriate in a given situation, as it was stated by the WTO Panel in EC – Asbestos, see European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, Report of the Appellate Body, WTO Doc. WT/DS135/AB/R, 5 April 2001, at para. 168.

6 See News.Scotsman.com of 21st February 2010.

7 See the relevant smoking statistics available on the Internet at <http://www.wpro.who.int/media_centre/fact_sheets/fs_20020528.htm> (last accessed on 7 July 2010).