TOBACCO CONTROL LAWS

Australia - Plain Packaging Requirement Applicable to Tobacco Products and Packaging

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.

On May 7, 2014, Australia submitted to the WTO Panel a request for a preliminary ruling concerning procedural objections, namely that the Dominican Republic failed to identify the specific measures at issue. The Panel ruled that the Dominican Republic’s panel request was properly filed.

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Australia – Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WT/DS441/19, 27 October 2014.

  • Australia
  • Oct 27, 2014
  • World Trade Organization Dispute Panel
View Case History

Parties

Plaintiff Dominican Republic

Defendant Australia

Third Party

  • Argentina
  • European Union
  • Guatemala
  • Honduras
  • Indonesia
  • Mexico

Legislation Cited

Trade Marks Amendment (Tobacco Plain Packaging) Act 2011

Tobacco Plain Packaging Act 2011

Tobacco Plain Packaging Regulations 2011 (as amended)

Related Documents

None

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
Trade Panel/Investment Tribunal/Arbitration
Governments may bring complaints before intergovernmental bodies on tobacco-related issues. For example, one country may complain that another country’s tax regime discriminates against its exported tobacco products. In some cases, a treaty may allow a private party to file a complaint against a government before an intergovernmental body.

Tobacco Control Topics

Packaging and Labeling Measures
Measures to regulate the marketing on tobacco packages. This includes both bans on false, misleading, deceptive packaging, as well as required health warnings on packaging. (See FCTC Art. 11)

Substantive Issues

Intellectual Property Violation
Regulations may infringe on intellectual property rights, which may be protected by international treaties. The industry may argue that bans on "deceptive" packaging that eliminate the use of colors, numbers or trademarks threaten intellectual property rights.
Trade Violation
A claim of an infringement of any international trade agreement, including General Agreement on Tariffs and Trade (GATT), Technical Barriers to Trade (TBT), Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), or bilateral treaties.

Type of Tobacco Product

None

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