Tobacco, health and IP rights: a meaningless balance?

Does too much smoking make you run
out of puff? Not if you're a train ...
This member of the IPKat team, who is actually a confirmed and enthusiastic non-smoker, has been charged from time to time with being "soft on the tobacco industry" by giving space to its apologists so that they can air their objections to proposals for plain packaging of cigarettes and other tobacco products so that they would be sold without effective branding (see, for example, earlier posts here, here, here and here, together with a quantity of readers' comments, many of which are well worth thinking about). This criticism, he feels, is entirely unfair: it is not his support for the tobacco industry or his fear of losing its support that has motivated him, but rather his enthusiasm for the positive attributes of branding. However, being as keen on fair play as he is on branding, and noting that today is the World Health Organization's World No Tobacco Day 2012, he is very happy to yield the floor to his friend and academic colleague Professor Mark Davison (Monash University, Australia), with whom he had a brief but enjoyable exchange of views at this month's International Trademark Association (INTA) Meeting. This is what Mark has to say:
Much has already been written in the IPKat about plain packaging of tobacco products. The Australian legislation will come into effect on December 1. The effect of the legislation can be summarised as follows: 
1. The use of non-word trade marks such as logos and colour schemes will be prohibited on retail packaging.

2. Word trade marks may be used but only in a designated font size and font face. The space available for the insertion of word trade marks is limited and textual and graphic warnings will take up the majority of the packaging.

3. The background colour of the packaging will be a drab brown. Consequently, the packaging will largely consist of drab brown packets with large textual and graphic warnings together with a small space at the bottom of the front of the pack for the brand name of the cigarettes.

4. The registration of tobacco trade marks may continue and existing and new registrations will be immune from non-use actions.

The discussions of plain packaging initiatives often involve considerable conflation of two distinct issues. The first is whether such moves contravene international or domestic legal obligations relating to trade marks. The second is a quite separate issue of whether such moves, if legal, would be a good idea. 
As to the first, much has already been written on the topic but that which claims the measures contravene the TRIPS agreement or that they constitute ‘expropriation’ are quite vague about why that is so. In particular, the correct statement that a trade mark is property is often followed by an incorrect assumption about the nature of the rights associated with that property. There is simply no right to use a trade mark under the TRIPS agreement and the arguments to that effect are considerable (here).  The only right given is a right to prevent others from using one’s trade marks. The absence of a right of use has a considerable impact on the argument about expropriation. If a right of use does not exist, how can it be taken? Even if property is taken, expropriation also involves an acquisition by government of that property. Governments considering plain packaging measures have no intention or desire to acquire or use tobacco trade marks. 
As for the second issue, there is no doubt that the interests of the tobacco industry are substantially affected by these measures. Those opposing them suggest that ‘other measures’ be taken in order to achieve a balance between public health concerns and intellectual property considerations but rarely identify with precision what those other measures might be in a context where other forms of promotion of tobacco have already been prohibited.  Prohibition has been suggested by some but it is not entirely clear how that is a better outcome for trade mark owners. It is also not clear what would be the efficacy of making criminals of 15% of the Australian adult population overnight for using a product to which they are already addicted. 
Ultimately, the question becomes whether there are any products whose sale should not be promoted in any meaningful manner. If so, perhaps that product would be one which, when used in accordance with the manufacturer’s intentions, leads to death as a direct consequence of usage (here), the mortality rate from use of the product is 10 times the national road toll, (here and here), 15 times the mortality rate for alcohol abuse (here), the product is addictive, the addiction is on a par with cocaine and heroin (here), the age of the majority when they become so addicted is less than 18, (here) and (here) and the packaging is clearly attractive to the young(here. Arguments about ‘individual responsibility’ may diminish in the light of the latter facts except when made by the most ardent libertarians. The difficulty with arguments about balancing intellectual property rights with public health considerations is that the arguments become meaningless when right holders fail to identify with precision the nature of those rights and fail to engage with the details of the evidence of the nature and extent of the tobacco problem. The tobacco industry does not have a distinguished record of engaging in meaningful discussion of such issues.
Well, says the IPKat, that puts the case pretty powerfully.  Is Mark's case unanswerable? Should these arguments be extended to cover other actually and potentially health-damaging products and services? Do let us know!

More of Mark's research can be viewed here.

Nosmo King here
My Last Cigarette lyrics here
When Smoke Gets in Your Eyes here
Tobacco, health and IP rights: a meaningless balance? Tobacco, health and IP rights: a meaningless balance? Reviewed by Jeremy on Thursday, May 31, 2012 Rating: 5


  1. "the mortality rate from use of the product is 10 times the national road toll" - I think this sort of argument leads down a dangerous road - because once tobacco and drink are abolished as a cause of death, perhaps we should then start looking at the next most frequent cause of death, and decide that BMW or Chevy or Honda, etc., cars should all look the same (drab brown, perhaps like a trabby, with just a small badge being allowed to identify the manufacturer)...
    Oh, and a question I have asked on several occasions (not yet in this forum) but never get an answer to is this: What am I allowed to die of?

  2. In the interests of broadening my own perspective, I am in the process of writing up a 'law-business-ethics' piece on this very (law-led) topic with two non-legal scholars.
    The legal arguments are very interesting, but equally so we want to investigate to what extent the law will have the intended consequences in terms of for instance consumer and producer behaviour in the marketplace. As part of our research, we have identified that other well-documented (and well-intended) regulatory initiatives in the tobacco sector have not induced the desired consequences.
    So whilst the legal balance is a very important component of the debate, and especially as other nations look to adopt the Australian template (and more or less have the political will do so notwithstanding drawn-out legal actions elsewhere, especially at WTO level) working out the likely business effects is a critical informant for the legal issue. Here the use of empirical data is very valuable.
    One only hopes that whatever happens in Australia - putting the law questions aside for a moment, other policymakers on-looking listen and try to learn from the experiences Down Under over the coming years. The EU Commission has already acknowledged the effect of warning messages in reducing smoking rates has gone down over time. No matter then what the ethical controversies and balances of a given law proposal may be (and certainly this is a really juicy one!), 'better law-making', i.e. of a more informed, more empirical and more reflective flavour, is surely a process that can benefit all affected parties.

  3. In response to Eric's question, I think that 'what am I allowed to die of?' misses the point. Plain packaging does not ban cigarettes. The govt is not making anyone stop smoking through the measure. Any smoker is still free to purchase cigarettes and can continue to 'die from it' if they wish.

    The difference is that tobacco companies can no longer use their brand power in order to get more people to smoke. It is well established from a marketing and branding perspective of the power of brands and the role they play in consumer decision making. Taking this element away means consumers will only have product attributes to base their decisions on. Where a product has so clearly a negative health effect, I think stripping away layers of branding to reveal the product's core is justified, and so reflected in international agreements.

    Whether it is going to be effective in eliminating smoking altogether is an entirely different issue, and one that we will have to just wait and see.

    As to the slippery slope argument, I would agree that the law should be consistent. Thus my own view is that if there is evidence that a particular product category has a direct negative causative impact upon public health, whatever product it may be, then that product should be subject to plain packaging. Although I am an IP enthusiast, I am not a fan of marketing - despite it being my former calling!

  4. @eric.In the case of alcohol and tobacco, it is the product itself which leads to the health issues. With cars, although they may be the actual instrument for death and injuries, it is the drivers who invariably 'cause' the accidents. So no slippery slope: just remove the humans and the road traffic accident problem goes away. ;)

  5. What will be the next dangerous activity that will require plain packaging (and effectively deprive a TM owner of the right to use a property right that the Govt has sold him)?

    I suggest boxing - well-known to cause brain injury. Then loud music, which can be very harmful to the hearing (eg Wikipedia mentions that "[Pete] Townshend [of The Who] suffers from partial deafness and tinnitus believed to be the result of noise-induced hearing loss; in other words, his extensive exposure to loud music."

    What next? Unhealthy food?

  6. Regardless of any legal arguments, IP or otherwise, as can be seen from the original post, it is difficult to avoid people's prejudices about the product getting in the way of the plain packaging debate. The final paragraph of Professor Davison's post falls into this trap.
    The first step in this type of policy-making exercise should be an assessment of whether the proposed measure will do any 'good'. Both (or all) sides of the debate should try and agree what a 'good' outcome is; clearly there will be opposing interests at play, but there interests should be placed out in the open at the outset of any policy-making exercise. If insufficient evidence to the efficacy of a measure is not already available (which will cause some debate in itself), the parties should then seek to agree a study which can best measure whether the proposed measure achieves that 'good' before the study is implemented, so as to avoid criticism after the event if the results of the study happen to go against one party's interests.
    Once this has taken place, the debate about whether the introduction of the proposed measure will impinge upon any party's legal rights can begin, and we can assess whether the 'good' done by the measure justifies the impingement upon the legal rights.
    In the plain packaging debate, no one has undertaken the first step properly; i.e. if a reduction in smoking is 'good' (which I believe it is), a study needs to be carried out to assess whether plain packaging would achieve this goal. Most commentators start from the assumption that plan packaging must reduce smoking, and then assess the IP arguments based on that assumption.
    However, no proper study has been done. If you look behind the 'studies' performed by plain packaging proponents, you'll find these studies are very weak. Those that I have (skim) read basically involve showing a branded pack and a plain pack to people of defined age groups, then asking them which they prefer. The results are then cited to show that “branded packs clearly have more appeal to children”. Whether a cigarette pack is more appealing to children does not answer the question of whether it encourages children to start smoking in the first place. A stronger connection must be shown, and it is not self evident that increased brand appeal encourages smoking. For example. When I was at school, people started smoking by buying individual cigarettes from other children at 20p a time – there wasn’t a choice of brand at that point, and the pack design took no part in choosing whether or not to start smoking in the first place.
    I am not going to deal with every possible argument in this ‘ere post, but the key point is this; policy making should be done on the basis of evidence, not on the basis of hunches and the basic prejudice that, because you think tobacco and tobacco companies are bad, anything big tobacco companies don’t like must be good. A common reaction is “well if it won’t reduce smoking, why are the tobacco companies fighting so hard to stop plain packaging?” Well, the current budget brands will love plain packaging, but it is the brand leaders who will lose market share – if you can currently charge a premium and compete for custom from among existing customers based on your expensively-maintained brand, you are going to fight measure which take your brand away. Plain packaging may or may not reduce overall smoking levels – there is insufficient proof either way - but it will certainly harm the brand leaders, hence the fight.
    Implementing a policy which gives big tobacco a kicking whilst not producing any associated health benefits doesn’t help anyone – it just causes harm to commercial interests. Commercial interests are not necessarily bad – sometimes they are, sometimes they’re not.
    In summary, if plain packaging reduces smoking I am in favour. If it doesn’t, I am against it. A debate which starts on the assumption that plain packaging ‘works’, as if this is somehow axiomatic, is not worth having.

  7. It strikes me as an example of wanting to be seen to be doing something, even if it doesn't actually achieve anything positive.

    I too doubt that young smokers are influenced by the packet design in deciding whether or not to take up smoking. I grew up in the East End of London and never smoked as a child, nor did my parents, but my contemporaries who did, said in later life that their motive was to look "grown up". When they were grown up they realised how silly they must have looked, and many said that they would not have bothered in retrospect.

    Any forced change to plain packets is unlikely to affect this sort of incentive to take up smoking, and must surely only make counterfeiting easier.


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