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
In the Mad Men days of the 1960s, advertising agencies
persuaded cigarette companies they needed branding to
entice customers. Photo by Reuters.
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
Prof Jane Kelsey.
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
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
Tobacco firms portray their stance as principled: defending
their rights to use branding to distinguish and promote their
"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
"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
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
"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
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
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
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.