Plain cigarette packs move closer to reality after pivotal court case

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Plain packs were found to be legal in Australia.
Plain packs were found to be legal in Australia.

Andrew Lansley became significantly more likely to introduce plain cigarette packs today, following a landmark ruling in an Australian court.

Tobacco companies have focused many of their arguments on the supposed illegality of the move to plain packs, but a judgement in the high court of Australia found it did not infringe their intellectual property rights.

The judgement will be watched closely in Britain, Norway, New Zealand, Canada and India, which are all considering implementing similar measures, but have been concerned about tobacco companies' threat of expensive and protracted lawsuits.

Last week, legal opinion provided by Leonard Hoffmann on behalf of tobacco giant Philip Morris to the British consultation said plain packs would amount to "expropriation" of the industry's intellectual property.


"I can see no reason why depriving someone of his proprietary interest in a trade mark for a tobacco product (however much it may be in the public interest to do so) should be different in principle from any other deprivation in which compensation is required," he wrote.

While the Australian case does not necessarily mean a British court would reach a similar conclusion, it suggests tobacco companies may struggle to use the legal argument against the measure.

On December 1st this year, all cigarette packs in Australia were changed to plain olive green, a colour which was found to be the least attractive to smokers.

Large visual warnings of the danger of smoking, including blinded eyes and cancer-ridden mouths, were the only images on the packet, with the brand featuring in small black letters at the bottom.

British American Tobacco, Japan Tobacco International, Imperial Tobacco and Philip Morris challenged the move in court.

"At least a majority of the court is of the opinion that the Act is not contrary to (Australia's constitution)," the court said in a brief notice of judgment today.

The full judgement is not available until later in the year. The tobacco firms will have to pay the government's legal fees. They have no right of appeal.

"Although the [law] passed the constitutional test it's still a bad law that will only benefit organised crime groups which sell illegal tobacco on our streets," British American Tobacco spokesman Scott McIntyre said in a statement.

"The illegal cigarette black market will grow further when all packs look the same and are easier to copy."

While concerns about the legal implications of the move have been reduced, it is still unclear if the government will buckle to the demands of health campaigners and implement a plain packs policy in the UK.

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