The ‘plain packs’ battle in the UK – lessons learned

31 Aug 2015

Despite this, and a multi-million dollar campaign by the tobacco industry and its front organisations, we were able to persuade the UK Government to go ahead with standardised ‘plain’ packaging of tobacco products. So how did we do it?

Success was not a given, and there are lessons from our campaign which may be useful to others following in our footsteps. First and foremost, do lean on those who went before you. Australia provided a role model and the comfort to our politicians that they were not going first. Colleagues involved in the campaign in Australia, particularly from the Cancer Council Victoria, provided a wealth of invaluable help and support, much of which is on their website

Designed to protect children

Secondly, our campaign was backed up by a disciplined and concerted alliance of over 300 organisations committed to improving public health, the Smokefree Action Coalition. They all used the same messages to ensure consistency of approach and clarity of vision. Framing the argument was essential, and what worked in the UK was to make clear that plain packaging was designed to protect children.

Thirdly, we never gave up and were able to turn potential disasters to our advantage. Lynton Crosby, the Australian tobacco industry lobbyist and election adviser to our Prime Minister, was widely credited with persuading our government not to go ahead with standardised packaging in summer 2013. But while this was a short-term success for the tobacco industry, longer-term it was a point of weakness as it exposed the government to accusations of caving in to industry lobbying.

We pursued this line relentlessly and gained widespread support for an amendment on standardised packaging, put forward by a group of backbench parliamentarians, which was attached to a government bill on children and families.

Government changed tack

Fearing that we would win the vote in Parliament, and highly sensitised to the fact that this provided yet another possibility to be attacked for being in the pocket of the tobacco industry, the government took on the amendment as its own. The struggle continued for another year because for standardised packaging to come into effect required not just primary legislation, but regulations with a date set for implementation.

At this point we were blessed by a Health Minister, backed up by a highly effective tobacco team, committed to getting plain packaging in place.

Passed with days to go before Parliament was dissolved for the election, the regulations are due to come into force on 20 May 2016, from which time all cigarettes manufactured for sale in the UK have to be in standardised packs.

The tobacco industry hasn’t taken this lying down. The right of European member states such as the UK to introduce standardised packaging is included in the revised European Tobacco Products Directive. The tobacco companies are challenging the TPD, with particular reference to standardised packaging.

The case is currently with the Court of Justice of the European Union, with a decision expected before 20 May 2016, the date by which member states are required to implement the TPD. There is also a lawsuit underway in the Irish Republic, brought by the tobacco companies against the introduction of plain packaging there.

Lawsuits launched

In the UK, lawsuits have been filed against the government by Philip Morris, British American Tobacco, Japan Tobacco International and Imperial Tobacco, as well as by a number of manufacturers of filter paper. They argue that the regulations on standardised packaging contravene EU law on the free movement of goods, as well as EU legislation on tobacco products, on trademarks and intellectual property, and also the WTO Agreement on Trade-Related Aspects of International Property Rights (TRIPS).

Furthermore, they argue that the regulations are an “unjustified deprivation without compensation” of the tobacco companies’ property rights, contrary to the EU Charter of Fundamental Rights, and Protocol 1 of the European Convention on Human Rights.

ASH applied to intervene on the side of the government, supported, pro bono, by Barristers Peter Oliver and Ligia Osepciu from Monckton Chambers, and Sean Humber, Head of Human Rights law for Leigh Day solicitors. Despite heavy opposition from the tobacco industry the Judge in the case gave ASH permission to intervene on 8 July.

The case is expected to come to court in December this year. Watch this space.

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