European
Parliament Health Committee has voted against ‘Plain Packaging’ today -- but
supported 75% size Health Warnings for tobacco products
It is time to report on further developments concerning the
packaging of tobacco products.
In April
2013 the IPKat reported on
an IP conference held by the Law Society of Ireland on the subject of
‘Plain packaging and trade marks’. A few weeks later, on 28 May, the
Irish Government announced its decision to follow Australia in introducing
legislation requiring cigarettes to be in ‘plain’, or ‘standardised’, packs,
with a view to enforcement in 2014.
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Plain packaged Kat |
IPKat
readers may recall that, on 19 December 2012, the EU Commission published
proposals for a revised Tobacco Products Directive (‘TPD’). The main
features of this proposal included a requirement for cigarette packs to bear
‘health warnings’ covering a minimum of 75% of the front and back surfaces started
from top edge. The proposed TPD allowed the possibility for Member States
to opt for ‘plain packaging’ if they wished to do so. It should be noted
that shortly after the publication of the EU proposal, the Irish Government
launched a consultation (with an extremely short time being set for responses)
on the TPD. Among those who submitted responses was ECTA (the European
Communities Trade Mark Association), whose response can be accessed here.
Some three
months later, in April 2013, MARQUES also published a position
paper on the TPD, which was addressed to members of the
European Parliament and Member States.
As is now
well known, there are outstanding challenges to the Australian plain packaging
law, which was upheld by the Australian High Court. Those include
challenges (by Honduras, the Dominican Republic, Cuba and Ukraine)
before the WTO, replying on certain provisions of the TRIPS Agreement and the
Technical Barriers to Trade (‘TBT’) Agreement. These may take two years
or more before there is any decision.
The issues
raised before the WTO, and in the EU, in relation in particular to the proposed
enlarged health warnings and to proposals to extend the TPD to require ‘plain
packaging’, concern not only provisions of TRIPS and TBT but also the general
right to property, recognized in the European Convention for Human Rights and
the EU Charter of Fundamental Rights. Perhaps it was because of the
seriousness of these issues, and the possibility that the WTO may rule against
the Australian plain packaging law, that the EU Commission has, wisely, not
shown any overt enthusiasm for a compulsory “plain packaging” provision in the
TPD, and the UK Government, which had been reported as including plain
packaging legislation in the ‘Queen’s Speech’ for the current Parliamentary
Session, has not yet decided to proceed with such legislation.
Back in the
EU arena, the revised TPD has been the subject of many discussions, and
decisions at the European Parliament (EP) and Council levels. At
the EP level, the Rapporteur of the the Environment, Public Health
and Food Safety Committee (’ENVI’), Ms Linda MacAvan MEP has proposed the
inclusion of full mandatory plain packaging provisions in the
TPD. In June, five ‘Opinion’ Giving Committees of the EP (Legal
Affairs, Internal Market, International Trade, Industry and Research and
Agriculture) voted on the TPD. All five Committees voted against ‘plain
packaging’. Four of them voted for 50% health warning labelling size, and
one for 70% size, in both cases such warnings to be at the bottom of the pack
faces. The Commission proposal places the health warning labelling at the top
edge of the packs which would have has a clear impact on many figurative trademarks.
At Council level, a
General
Approach in the nature of a political compromise was adopted
on 21 June. Among the agreed elements, there would be m
andatory combined (picture and text) health
warnings covering 65% . Member states may introduce more
stringent rules on packaging (such as plain-packaging), subject to certain
conditions (such as notification of the Commission). Plain packaging would
therefore not be compulsory.
On 3 July 2013 a number of organisations concerned with
Intellectual Property rights (APRAM, BMM,ECTA, MARQUES and UNION IP) called on
the Member of the ENVI committee in a
Joint
Statement to vote against Plain Packaging, 75% size health
warnings and arbitrary prohibition of trademarks and brands (as proposed
in article 12 of the revised TPD).
The ENVI Committee met on the afternoon of 10 July, to
discuss and vote on the TPD. Plain packaging was defeated at four occasions
during the votes (in connection with article 13 and the recitals of TPD).
Unfortunately, there was a vote in favour of the 75% health warning labelling
from top edge (Article 9 of TPD), though with a narrow majority. The next
step at the EU level will be now the vote in Plenary session on the ENVI
committee’s report, most probably in the week of 9 September this year. Proposed
amendments against the 75% health warning size could still be possible.
Surely health considerations must outweigh property right considerations in this case. That corporations should have "human rights" is an absurd notion. It is disappointing that the EP is apparently not prepared to resist the tobacco lobby, and one can only hope that more governments find their backbone in a similar manner to the Irish government.
ReplyDeleteHooray, up ther Irish! Or, as they would say Downunder, good on yer, mites! As has been pointed out, tobaco products are the only items of commerce which, when used exactly according to the manufacturers' directions, will kill you, or, at the very least, shorten your life expectancy and general quality of life. Tobacco represents the biggest cause of preventable death in the western world at least. That the manufacturers themselves, who can no longer deny the nastiness of the products they peddle, continue not only to do so, but also to push their filth with sophisticated advertising, is a mark of their total moral bankruptcy. Therefore, every means possible should be used to stamp out this vile practice, including stopping the product looking in any way attractive. And if that means stripping them of their trade mark and trade dress rights, so be it.
ReplyDeleteAnonymous @ 04.50
ReplyDeleteI agree that health considerations should outweigh all others, but doubt that fiddling around with packaging and branding is the right way to treat health considerations: it's the tobacco products themselves that cause damage to health, not the packaging.
That corporations have "human rights" is arguably an absurd notion, but it is one that is now firmly established by ECtHR case law and must therefore be applied.
Regular smoking is not necessarily fatal. I know of several octogenarians who were regular smokers and died of things other than smoking-related diseases, and it may be recalled that the world's reliably documented longest-living woman, Jeanne Calment, who lived to 122, only gave up smoking when she was 117.
ReplyDeleteNb I am not a smoker myself and have no axe to grind either way.
It is reasonably clear that tobacco marketing does cause people to start smoking: see the 2012 Report of the US Surgeon General, Preventing Tobacco Use Among Youth and Young Adults. If that is so, then it is fair to say that the marketing itself causes health damage. The question then is whether the packaging is a contributing factor. I am not familiar enough with the literature to know the answer to that question, but it seems entirely plausible to me that the answer is yes, since packaging and branding is one component of the marketing effort. Given that the issue is one of life and death, I see no reason why the government should require conclusive evidence regarding packaging specifically before acting against it. A patent on a gun doesn’t give the patentee a right to kill someone with that gun, and I don’t see why trade marks should be treated any differently.
ReplyDeleteSee more information here: http://www.consilium.europa.eu/homepage/highlights/council-agrees-on-revision-of-tobacco-rules?lang=nl
ReplyDeleteIf there is one thing I cannot stand, it's a prohibitionist. Trying to force their views on all and sundry and then bleat when their lifestyle is affected. Sweets, drinks and food will be next - probably laughter too.
ReplyDelete