[Ip-health] Special 301: NFTC puts plain packaging policies of Australia, European Union, Israel, Thailand, UK, Ireland, Scotland, and New Zealand under the spotlight

Thiru Balasubramaniam thiru at keionline.org
Tue Feb 11 02:34:29 PST 2014


The National Foreign Trade Council (NFTC) submission (7 February 2014,
Docket USTR-2013-0040) to USTR's 2014 Special 301 Review contains a section
on plain packaging policies in the context of the protection of trademarks.
These comments come at the heels of five separate WTO dispute settlement
proceedings initiated against Australia by WTO members (Ukraine, Honduras,
the Dominican Republic, Cuba and Indonesia) because of its plain packaging
policies; please see
, DS435 <http://wto.org/english/tratop_e/dispu_e/cases_e/ds435_e.htm>,
, DS458 <http://wto.org/english/tratop_e/dispu_e/cases_e/ds458_e.htm>,
DS467<http://wto.org/english/tratop_e/dispu_e/cases_e/ds467_e.htm> for
further details.

Reproduced below is the NFTC language on plain packaging:

*Australia, European Union, Israel, Thailand, UK, Ireland, Scotland, and
New Zealand*

*"Plain packaging:"* In 2012, the Australian Government implemented
legislation that mandates the "plain" packaging of all tobacco products.
Several other countries have contemplated new government policies to reduce
or eliminate the ability of manufacturers to distinguish products from
those of competitors.

Last year, the EU Parliament considered a new Tobacco Products Directive,
which removed an earlier provision on EU-wide plain packaging, but would
still permit member states may still be able to adopt such measures
individually. In Israel, the Economic Committee in the Knesset has advanced
a provision that could enable the Ministry of Health to adopt plain
packaging on tobacco products. Thailand's Ministry of Public Health is
currently considering a plain packaging law and in New Zealand's House of
Representatives a bill has been introduced that would mandate plain
packaging. Recently, the UK government announced that it will consider the
evidence for plain packaging of tobacco products. Scotland also indicated
it would be consulting on plain packaging legislation in 2014 and the Irish
government has approved hearings by the Parliament on a plain packaging

These measures have potentially far-reaching implications for global brands
well beyond any particular industry. Mandating the elimination of
trademarks of American businesses would violate international trade
obligations and threaten to undermine the rules-based international trading

Trademarks play a central role in the global economy and are often a
company's most valuable asset. They are not merely "logos and designs" as
one Trade Minister suggested. Regardless of the current intention or
product, destroying a product's identity and a company's accumulated value
would set a damaging precedent with potentially far-reaching implications
for trade and investment in a wide variety of sectors, and would provide a
precedent for other countries to violate established trade rules in other

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