[Ip-health] IP-Watch: Tobacco Plain Packaging Discussion Lights Up Again At WTO

Thiru Balasubramaniam thiru at keionline.org
Thu Feb 26 07:48:46 PST 2015


Tobacco Plain Packaging Discussion Lights Up Again At WTO

25/02/2015 BY CATHERINE SAEZ <http://www.ip-watch.org/author/catherine/>,

The issue of plain packaging for tobacco products as a health measure has
been smouldering at the World Trade Organization since Australia decided to
implement legislation requiring plain packaging in 2012. Now, as more
countries seek to enact similar legal provisions, some tobacco producing
countries continue to try to stub them out, including at the WTO
intellectual property committee.

Plain packaging draft legislation in Ireland and the United Kingdom sparked
a new discussion on the issue at the Council for the WTO Agreement on
Trade-Related Intellectual Property Rights (TRIPS), which took place on
24-25 February.

Other topics addressed during this TRIPS Council session included
least-developed countries requesting an extension of the waiver granting
them the ability not to enforce intellectual property rights on
pharmaceutical products (*IPW*, WTO/TRIPS, 24 February 2015
and the issue of whether to make permanent a moratorium on non-violation
complaints under the TRIPS Agreement.

In addition, the topic of women and innovation, introduced by the United
States and Norway and co-sponsored by the European Union, Japan and Turkey,
was also discussed, according to some sources, with an intervention from
the World Bank.

During the TRIPS Council meeting, the EU said that on 17 February the
legislative process resumed on Ireland’s draft bill, according to a WTO
official speaking at a press briefing today.

Separately, on 21 January, the UK health minister confirmed the
government’s intention to introduce plain or standardized packaging through
regulations, the EU reported.

The UK regulations are expected to be introduced by the end of March and
come into force at the same time as the European Tobacco Products Directive
in May 2016, the WTO official said. The European Commission, which speaks
on behalf of EU countries at the WTO, defended the UK and Irish initiatives
at the TRIPS Council, he said.

Dominican Republic Cites Concerns, Suggests Alternatives

The Dominican Republic, Cuba, Honduras, Indonesia and Ukraine have
challenged Australia’s plain packaging measures at the WTO Dispute
Settlement Body on the grounds that those measures are inconsistent with
WTO members’ obligations under TRIPS.

According to the Dominican Republic’s statement to the TRIPS Council, “By
stripping all design elements from tobacco packaging and standardizing
other packaging features, plain packaging measures undermine the basic
features of trademarks and geographical indications (“GIs”) as protected
under the TRIPS Agreement.”

Australia previously demanded that members not discuss the dispute
settlement case in the TRIPS Council as it is now the responsibility of the
DSB and therefore under WTO rules should not be discussed elsewhere. But
that did not stop opponents of Australia’s measure from raising it again

The importance of the health objectives “is not disputed and is, indeed
pursued in my country by my Government,” the delegate said in her
statement. “However, the real-world empirical data emerging from Australia
confirms that – contrary to the optimistic predictions by plain packaging
proponents – plain packaging has failed to reduce smoking rates among the
population in general and among youth in particular.”

“As was confirmed by the same real-world empirical data, plain packaging
has undermined the vital differentiating role played by trademarks and GIs
in promoting competitive opportunities in the marketplace. Market diversity
is replaced by commoditization and price becomes the only meaningful factor
that can be used to compete. We are seeing the detrimental impact of this
in Australia, as consumers have increasingly shifted to cheaper low-end
licit and illicit tobacco products,” she said. The delegate did not cite
the source of data she referenced.

The Dominican Republic urged the UK and Ireland “to actively consider
alternative measures that provide certain health benefits – unlike plain
packaging – without violating WTO rules. In particular, we suggest raising
the minimum legal purchase age to 21 and increasing taxes on tobacco
products.” They encouraged both countries to delay consideration of
proposals for plain packaging until the WTO ruling.

They also suggested a “pre-vetting” mechanism, which would “require the
individual features of retail packaging to be approved before they are
placed on the market.”

According to the WTO official, Nicaragua, Honduras, Cuba, Indonesia,
Nigeria and Zimbabwe supported the Dominican Republic, while Australia,
Uruguay, Canada, Norway, and New Zealand supported the UK and Ireland and
rejected the call to wait for the WTO ruling. Australia deemed it
inappropriate to comment on the disputes, the official reported.

WHO Support for Plain Packaging

The World Health Organization delivered a statement on the role of plain
packaging, explaining that “Plain packaging of tobacco products is one of a
number of complementary tobacco control measures that work together to
protect human health.” Plain packaging complements other measures such as
restrictions on advertising and promotion bans on misleading packaging, and
health warnings on packaging, the WHO representative said.

Contrary to the Dominican Republic, the WHO representative said, “Empirical
evidence from well qualified, respected and credible sources suggests that
plain packaging will make restrictions on advertising and promotion,
prohibitions on misleading packaging and health warnings more effective.”

“This evidence includes experimental studies, surveys and focus group
studies that have tested the impact of different forms of plain packaging
in different places and yielded consistent results,” he said.

Women and Innovation

According to sources, the discussion topic was broadly discussed by a
number of countries, but little information was available on what was said.
The WTO official said a number of countries contributed to the debate by
sharing their national strategies to increase women’s participation in the
labour market and innovation.

The World Bank also provided a statement
on the subject, and presented four aspects of the issue of women and

– The relationship between entrepreneurship and innovation in women-owned

– Inclusive innovation models that bring women into the design and delivery
of products for low-income households

– Addressing the under-representation of women in innovation-related

– Addressing barriers to women’s participation in the economy and trade in

On the rest of the agenda items, positions remained the same, according to

This includes a possible permanent moratorium on non-violation complaints
(complaints not relating to any direct WTO rules infringement) should apply
to intellectual property-related disputes should be indefinitely extended.
The majority of WTO members are in favour of the indefinite extension,
while the United States and Switzerland are opposed to it.

According to some sources, Japan holds a middle-ground position on the
non-violation complaint issue. The WTO official said Japan is seeking to
have a discussion on the modalities and scope of such non-violation
complaints under TRIPS.

Amb. Mothusi Palai of Botswana, chair of the TRIPS Council, handed the
chair over to Amb. Abdolazeez Al-Otaibi of Saudi Arabia at the end of the
meeting, according to WTO.

More information about the Ip-health mailing list