This time it's serious

The global tobacco industry - which barely flinched when New Zealand banned smoking in pubs and raised cigarette prices - is fighting back furiously against plain packaging. Geoff Cumming, of The New Zealand Herald, examines why.

It's just a small box, fits neatly in the palm of a hand. With ugly images of cancer victims and health warnings taking up much of the packet, you might think the rest isn't worth scrapping over. But New Zealand is about to become the front line in one of the biggest battles yet fought between public health campaigners and the tobacco industry - over what goes on the packet.

Hard on the heels of retail display bans, campaigners are wheeling out plain packaging as they seek a decisive blow in their push towards endgame - the point where smoking rates are so low that tobacco ceases to be a dominant public health issue.

The industry has endured so many hits in recent years - smoke-free bars and restaurants, the graphic warnings, price hikes and now retail display bans - that we might be forgiven for thinking it was gasping for breath. But global cigarette sales continue to soar and addiction rates here remain stubbornly high.

Researchers are focused on the Government's target of a (largely) smoke-free New Zealand by 2025 and have yet more weapons in their sights: axing duty-free sales, licensing retailers, banning sales within a kilometre of schools ... But the box - the only avenue left for companies to promote their brand - looms as something of a trophy.

As if to vindicate the campaigners' fixation, the industry - which mustered only token public resistance against tax increases and the display ban - is making a real stand against plain packaging, summoning up its legendary influence and strategic cunning.

The companies are behind a volley of legal moves to try to head off Australia's introduction of plain packs on December 1, after failing to deter politicians with a "hearts and minds" publicity campaign waged on radio, television and the internet. While Australia's High Court has rejected a challenge brought on constitutional grounds, plain packaging faces a series of tougher hurdles before the World Trade Organisation and investor-state dispute tribunals.

New Zealand has obtained third party (observer) status for the hearings.

Tobacco firms portray their stance as principled: defending their rights to use branding to distinguish and promote their legal products.

"Branding and intellectual property are an integral part of a lawful and free market economy," says Imperial Tobacco, whose New Zealand brands include Horizon, Peter Stuyvesant and Superkings.

"Plain packaging would fundamentally weaken the robust system of domestic and international intellectual property protection on which New Zealand businesses rely," says one of two websites launched here to fight the move.

British America Tobacco NZ (BAT) last month launched a print, TV and radio advertising campaign while the companies are also lobbying politicians and opinion leaders. Recent public comments by Winston Peters, Ron Mark and Rodney Hide are strikingly similar to concerns expressed on one website that alcohol and obesity are as big a threat to Maori and Pacific communities as smoking is.

More worrying for decision-makers are the thinly veiled threats about what New Zealand risks if it follows Australia's lead. Plain packaging would violate trademark rights protected by international law by effectively eliminating the use of trademarks for tobacco products, says Imperial Tobacco.

On BAT's agreedisagree website and in media statements, the industry says plain packaging would weaken our ability to protect our exports from similar labelling and brand expropriation policies - even suggesting our wine and dairy exports could be forced into plain packages.

We could be shooting ourselves in the foot: New Zealand relies on WTO free trade protections, as we did in forcing Australia to accept our apples. And how hypocritical to demand plain packaging for cigarettes when we're planning to use the WTO to oppose plain packaging on alcohol in Thailand ...

Even the United States Chamber of Commerce has waved its finger, warning that - with the Trans Pacific Partnership negotiations under way - it is "most troubling" that the Government would consider destroying an industry's "legitimate trademark protection and branding rights long protected under law and international treaties". The subtext: see you in court.

To health campaigners, this shows the industry is running scared and fears Australia's legislation could have a domino effect.

"I've been in some extremely entrenched campaigns such as the ban on smoking in pubs and sponsorship in sport but I've never seen anything as big as their opposition to this," says Simon Chapman, professor of public health at Sydney University. "The only conclusion is that they have a complete understanding of how this will affect their bottom line." Australia's initiative has attracted global interest, with Britain, India and South Africa among countries interested in following suit. Health authorities in the European Union have called a conference in Turkey next month to discuss the measure.

But New Zealand is next cab off the rank. The Government agreed in principle to plain packaging in April and consultation is under way on a Ministry of Health proposal modelled on the Australian approach. There, cigarettes will be sold in olive packs with graphic health warnings covering 75% of the front of the pack. Warnings on the back will continue to cover 90%. New Zealand's proposals are similar, with logos and embossing banned. Only the brand name and variety would be printed on the front in regulated size, font, colour and position.

Australia faces WTO challenges from Ukraine, the Dominican Republic and Honduras - their claims presumably financed by the tobacco industry.

None has significant tobacco trade with Australia but claim they would like to have, says Prof Jane Kelsey, an international trade expert at the University of Auckland law school.

The claimed violations of WTO rules protecting intellectual property have been widely condemned - including by our Trade Minister, Tim Groser.

"It's an outrageous thing for these companies to be using the WTO as a backdoor attack on Australia," Mr Groser said last month.

But legal commentators caution that WTO outcomes are difficult to predict and Prof Kelsey believes claimants might gain traction with their claims that plain packaging constitutes a "technical barrier to trade".

Labelling rules covered by this agreement mean countries cannot impose measures without scientific proof that the policy will achieve its objective.

Countries are required to adopt the least onerous measures to achieve their objectives.