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Australia - Tobacco Plain Packaging [Australia] [June 28, 2018]

In 2012 and 2013, Honduras, Indonesia, Cuba and Dominican Republic brought complaints in the World Trade Organization (WTO) claiming that Australia's tobacco plain packaging laws breached the WTO agreements. The complaining countries argued that Australia’s law breached the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) by failing to provide required protections to trademarks rights and because it is an unjustifiable encumbrance on the use of tobacco trademarks; and the Agreement on Technical Barriers to Trade (TBT Agreement) because it is more trade-restrictive than necessary to fulfill a legitimate objective.

This long anticipated ruling by the WTO rejected all grounds of complaint against Australia's plain packaging laws in a 900 page ruling. The panel's authoritative ruling should be powerful in persauding governments to move forward with tobacco plain packaging and can be used to resist many of the flawed arguments the tobacco industry puts forward to oppose the policy. The WTO considered extensive evidence from Australia and the complaining countries and found the evidence demonstrates tobacco plain packaging works to reduce tobacco use. The panel re-affirmed that states have the right to regulate for public health under WTO law and the policy does not interfere with international trademark rights. The panel made strong findings of fact which undermine many of the other arguments that the tobacco industry tries to use to oppose plain packaging laws. These are detailed in the briefing document that can be downloaded under the 'additional documents' tag. 

Australian Competition and Consumer Commission v. The Joystick Company Pty Ltd. [Australia] [May 02, 2017]

The Australian Competition and Consumer Commission successfully took action against an e-cigarette company for making false and misleading statements in violation of the Australian Consumer Law. The e-cigarette company stated on its website and in a YouTube video that its products did not contain carcinogens and toxic substances found in traditional tobacco cigarettes. 

In this decision, the court accepted the Commission’s recommendations and ordered the company to stop making statements that its products do not contain carcinogens and toxic substances for a period of three years. The court found that the company had no evidence to support its statements, which had the potential to mislead consumers who might not have purchased the products if they had known about the presence of these chemicals. Additionally, the court ordered the company to include information on its website about this decision for 90 days. Finally, the court fined the company $50,000 and its director $10,000. 

Australian Competition and Consumer Commission v. Social-Lites Pty Ltd [Australia] [May 02, 2017]

The Australian Competition and Consumer Commission successfully took action against an e-cigarette company for making false and misleading statements in violation of the Australian Consumer Law. The e-cigarette company stated on its website and in a YouTube video that its products did not contain carcinogens and toxic substances found in traditional tobacco cigarettes. 

In this decision, the court accepted the Commission’s recommendations and ordered the company to stop making statements that its products do not contain carcinogens and toxic substances for a period of three years. The court found that the company had no evidence to support its statements, which had the potential to mislead consumers who might not have purchased the products if they had known about the presence of these chemicals. Additionally, the court ordered the company to include information on its website about this decision for 90 days. Finally, the court fined the company $50,000 and its director $10,000. 

Australian Competition and Consumer Commission v. Burden [Australia] [May 02, 2017]

The Australian Competition and Consumer Commission successfully took action against an e-cigarette company for making false and misleading statements in violation of the Australian Consumer Law. The e-cigarette company stated on its website that its products did not contain harmful chemicals and carcinogens found in traditional tobacco cigarettes. 

In this decision, the court accepted the Commission’s recommendations and ordered the company to stop making statements that its products do not contain harmful chemicals and carcinogens for a period of three years. The court found that the company had no evidence to support its statements, which had the potential to mislead consumers who might not have purchased the products if they had known about the presence of these chemicals. Additionally, the court ordered the company to include information on its website about this decision for 90 days. Finally, the court fined the company $40,000 and its director $15,000. 

De Bruyn v. Victorian Institute of Forensic Mental Health [Australia] [March 22, 2016]

A patient at an Australian mental health facility sued to block implementation of the facility’s smoke-free policy. The court upheld the smoke-free policy because: (1) it was within the authority of the mental health hospital to adopt the policy; (2) the state tobacco control law did not create a right to smoke in mental health hospitals; and (3) the hospital properly considered the impact that the policy might have on the patient’s human rights, such as the right to dignity. In particular, the court found that the hospital gathered extensive input on policy over a four-year period and that the policy would be implemented along with psychological and other support systems, including nicotine replacement therapy and cessation counseling. 

Philip Morris Asia v Australia [Australia] [December 17, 2015]

Philip Morris Asia challenged Australia's tobacco plain packaging legislation under a 1993 Bilateral Investment Treaty between Australia and Hong Kong. This was the first investor-state dispute brought against Australia.

Philip Morris Asia initiated the arbitration in November 2011, immediately after the legislation was adopted. Australia responded with jurisdictional objections and sought a preliminary ruling on these issues. The tribunal bifurcated the proceedings and on 18 December 2015 issued a unanimous decision agreeing with Australia's position that the tribunal had no jurisdiction to hear the claim.

The main objection to jurisdiction was that at the time the dispute arose, Philip Morris Asia was not a foreign investor in Australia. The government announced its decision to proceed with plain packaging legislation in April 2010. At that time, 100% of the shares in Philip Morris Asia were owned by the parent company located in Switzerland (which had no investment treaty with Australia). Philip Morris International then undertook a restructure in 2011 which meant that Philip Morris Asia, located in Hong Kong, became the sole owner of the shares in the Australian subsidiaries. 

The Tribunal found that Claimant’s restructure was for the principal, if not the sole, purpose of gaining protection under the Treaty so as to bring a claim against the plain packaging legislation. As such Philip Morris Asia's claim was an 'abuse of rights'. This concluded the arbitration in Australia's favour, subject to finalisation of the costs claim.

Bhandari v. Laming [Australia] [October 16, 2015]

A landlord was ordered to pay compensation to his tenant (a percentage of the rent and moving costs) for breaching a rental agreement. The tenant moved out due to an ongoing issue of smoke drifting from a downstairs apartment. The appeals panel which heard the case agreed there was a structural ventilation problem with the building which allowed smoke to flow into the apartment, making it unfit for habitation. Although the landlord was not responsible for the drifting smoke, the panel agreed that he was nevertheless responsible for providing a unit fit for habitation and dismissed the landlord’s appeal.

Australia - Plain Packaging Requirement Applicable to Tobacco Products and Packaging [Australia] [October 27, 2014]

Information about this decision coming soon. 

Maclean and District Bowling Club Co-operative v. Green [Australia] [August 14, 2014]

The respondent in this appeal, Ms Green, contracted lung cancer as a result of exposure to environmental tobacco smoke in the workplace and her own tobacco use. She was exposed to passive smoking in the workplace for a period of about 26 years until she was diagnosed with lung cancer in 2002, and smoked somewhere between 10-50 cigarettes a day for a period of 17 years up to 1992. She was successful in her claim for workers compensation before an Arbtitrator, who found that (among other things) exposure to smoke in the workplace was a substantially contributing factor to the contraction of her disease. This was an appeal from that decision.

The respondent insurer alleged that (1) there was insufficient evidence before the Arbitrator to conclude that exposure to passive smoking in the workplace substantially contributed to Ms Green's disease; and (2) the Arbitrator gave insufficient reasons for his decision.

In this decision, Deputy President Roche found that there was sufficient evidence for the Arbitrator to conclude that Ms Green's employment was a substantial contributing factor to her injury. However, Deputy President Roche agreed with the appellant that the Arbitrator gave insufficient reasons for his decision, and therefore remitted the matter to a different Arbitrator for re-determination.

Hawkins v. Van Heerden [Australia] [June 24, 2014]

The defendant was previously convicted of selling products designed to resemble a tobacco product in breach of s106(a) of the Tobacco Products Control Act 2006 (WA). The defendant had been selling e-cigarettes and nicotine-free 'e-Juice'. (See: Hawkins v Van Heerden [2014] WASC 127 (10 April 2014)).

In this decision, the Supreme Court imposed a fine of $1,750 for the offence and ordered the defendant to pay the costs of the trial and the appeal. In doing so, Pritchard J observed that it was not necessary to decide whether e-cigarettes were harmful to their users, because whether or not the product sold was harmful to human health was not an element of the offence under s106 of the Act. Rather, the purpose of s106 is to discourage the promotion of tobacco products and smoking by banning the sale of products which resemble tobacco products and contribute to normalising the activity of smoking.