TOBACCO CONTROL LAWS

Australia - Tobacco Plain Packaging Final Ruling

The Appellate Body of the World Trade Organization (WTO) issued its final ruling affirming that Australia’s pioneering law requiring plain packaging for tobacco products and finding it entirely consistent with WTO agreements. In particular, the WTO appeal ruling confirmed the original finding that the evidence shows that tobacco plain packaging laws "are apt to, and do in fact, contribute to Australia's objective of reducing the use of, and exposure to, tobacco products."

The appeal ruling also confirmed that:

  • Tobacco plain packaging is not more trade-restrictive than is necessary to meet its legitimate public health objective.
  • Trademark owners do not have a positive right to use their trademarks under WTO TRIPS agreement, but only the right to prevent third parties from using them.
  • Tobacco plain packaging is a justified restriction on the use of trademarks and does not violate trademark protections.

Appellate Body Report, Australia — Certain Measures Concerning Trademarks and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WTO Doc. WT/DS435/AB/R and WT/DS441/AB/R (adopted June 9, 2020).

  • Australia
  • Jun 9, 2020
  • Appellate Body of the World Trade Organization (WTO)
View Case History Download Document

Parties

Plaintiff

  • Cuba
  • Dominican Republic
  • Honduras
  • Indonesia

Defendant Australia

Legislation Cited

Tobacco Plain Packaging Act 2011

International/Regional Instruments Cited

WHO Framework Convention on Tobacco Control (WHO FCTC)
Agreement on Technical Barriers to Trade (TBT Agreement)
General Agreement on Tariffs and Trade 1994 (GATT)
WHO FCTC Article 11 Guidelines
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

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.

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

Right to Freedom of Expression
A violation of the right to expression, free speech or similar right to express oneself without limitation or censorship. The industry may claim that a regulation infringes on their right to communicate with customers and the public. Similarly, they may claim that mandated warnings infringe on their freedom to communicate as they desire.

Type of Tobacco Product

None

"We note the reference made in the TPP Act and its Explanatory Memorandum to Australia's intention of giving effect to certain obligations under the FCTC through the adoption of the TPP measures. In our view, the importance of the public health reasons for which the trademark-related special requirements under the TPP measures are applied is further underscored by the fact that Australia pursues its domestic public health objective in line with its commitments under the FCTC, which "was developed in response to the globalization of the tobacco epidemic" and has been ratified by 180 countries."
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