The Framework Convention Alliance for Tobacco Control

Plain packs: "The last battlefield"

In 2008 Tobacco Journal International, splashed ‘Plain packs can kill your business’ on its front cover in response to the UK government consultation on such legislation. The fear wasn’t the threat that sales would be hit hard, but that high end brand values would be terminally undermined. Why? Because, exclusive packaging communicates brand image and differentiates high priced brands from value products’. To quote the article, “‘while the cost of production is roughly the same for both…. the profit margin of premium brands is considerably higher than that of low-priced cigarettes’.

The lesson is clear, the top priority for the transnational tobacco industry is profitability rather than sales. This is an industry which made US$ 44.1 billion in 2013, more the combined profits of Coca-Cola, Walt Disney, General Mills, FedEx, AT&T, Google, McDonald’s and Starbucks in the same year. And profits have been rising far more rapidly than sales. Between 2000 and 2014, global cigarette volume sales increased by 8 percent while retail values increased 121 percent. A trend that plain packaging threatens to bring to a shuddering halt.

FCTC guidelines on Article 11 and 13 were adopted at COP3 in November 2008 encouraging Parties to go ahead with plain packaging. Four years later in 2012 it was Australia which led the way, followed by the UK and France in May 2016. The dominoes are now falling, with the Canadian Cancer Society report published this week showing that four countries now require plain packs (Australia, France, UK, and Hungary) with a another 14 more working on it.

The tobacco manufacturers are using any and every legal avenue to try to stop the contagion from spreading. So far there has been a constitutional challenge in Australia, a bilateral investment treaty case in Hong Kong, a cases in the European Court of Justice, and cases in the UK and French courts. All so far lost (the World Trade Organisation government to government challenge, with the tobacco industry’s fingerprints all over it, is still pending). But make no mistake there will be others, for this is an existential threat to the tobacco industry described by one of their lawyers in the UK case as the ‘last battlefield’.

For any government hit by plain packaging litigation, the judgement in the UK provides a wealth of ammunition to take the fight to the industry. The central most important argument of the industry demolished by the judgement was that requiring plain packs was tantamount to stealing their ‘property’ and was either illegal or, if it were found to be legal, required multi-billion dollar compensation from the government in question. Shamefully one of the industry lawyers even made a comparison to slavery, saying, “However strong the objective for taking property away, you will normally compensate,” he told the judge. “Your lordship will remember the slave owners were compensated when slavery was abolished.” It was an unfortunate example and not one that impressed the judge who pointed out it was the UK parliament, dominated by slave owners, which agreed compensation, not the courts. Not a precedent any court around the world should follow. Big tobacco’s profits were built on slavery: and while the owners were compensated, the victims of slavery were not.

For more on the UK court judgement see: tinyurl.com/zjgnxwn

Deborah Arnott Action on Smoking and Health, UK

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