Australia High Court upholds tobacco plain-package law

[JURIST] The High Court of Australia [official website] on Friday published its reasons [text, PDF] for dismissing a lawsuit brought by several large international tobacco companies challenging the labeling requirements of the Tobacco Plain Packaging Act 2011 (TPP Act) [materials]. The court originally dismissed the challenge [JURIST report] in August but provided its reasons only this week. The TPP Act sets criminal and civil penalties for failure to conform to the Tobacco Plain Packaging Regulations 2011 [materials], which impose significant restrictions on the color, shape, finish and other aesthetic details of retail packaging for tobacco products and mandate specific health warnings be printed on each pack. British American Tobacco, Imperial Tobacco Australia Limited, Philip Morris and Japan Tobacco International [corporate websites] argued that the TPP Act would amount to an unconstitutional acquisition of the tobacco giants' intellectual property rights and goodwill thereof. The court disagreed:

By prescribing what can and cannot appear on retail packaging the TPP Act affects that packaging and those who produce and sell the tobacco products. But to characterise this effect as "control" diverts attention from the fundamental question: does the TPP Act give the Commonwealth a legal interest in the packaging or create a legal relation between the Commonwealth and the packaging that the law describes as "property"? Compliance with the TPP Act creates no proprietary interest ... The TPP Act is not a law by which the Commonwealth acquires any "interest in property, however slight or insubstantial it may be" ... The arguments advanced by the tobacco companies are answered by the logically anterior conclusion that the TPP Act effects no acquisition of property.
The regulations specifically dictate that cigarette packs have, among other requirements, largely plain outer surfaces the green-brown "colour known as Pantone 448C" and that the brand or business name be printed in Lucida Sans typeface "no larger than 14 points in size" and "in the colour known as Pantone Cool Gray 2C." Trademarks appearing on the packaging must conform to specific regulations.

Tobacco regulations have long been a contentious subject. Also in August the US Court of Appeals for the District of Columbia Circuit [official website] ruled that tobacco companies do not need to print graphic warnings of the dangers of smoking on cigarette packages. In July the US Court of Appeals for the Second Circuit [official website] struck down [JURIST report] a law requiring stores todisplay graphic anti-tobacco adswhere tobacco products are sold. In March the US Court of Appeals for the Sixth Circuit ruled that graphic cigarette label warnings [JURIST news archive] are constitutional. The court decided unanimously that the portions of the Family Smoking Prevention and Tobacco Control Act (FSPTCA) [HR 1256 text] designed to limit the tobacco industry's ability to advertise to children, including a ban on distributing clothing and goods with logos or brand names, as well as sponsorship of cultural, athletic and social events requiring cigarette packaging and advertisements, is a valid restriction of commercial speech. President Barack Obama signed [JURIST report] the FSPTCA into law in 2009, granting the FDA certain authority to regulate manufactured tobacco products.

 

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