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New Zealand: Legislation Requiring Plain Packaging for Tobacco Products to Be Developed

(Apr. 23, 2012) On April 19, 2012, New Zealand's Associate Health Minister, Hon. Tariana Turia, announced that the Cabinet had agreed in principle to develop legislation requiring plain packaging for tobacco products. However, any proposed legislation will be subject to a public consultation process, to be conducted later this year. (Press Release, Hon. Tariana Turia, Moving Towards Plain Packaging of Tobacco Products, SCOOP (Apr. 19, 2012).)

The move to adopt plain packaging legislation relates to a coalition agreement between the governing National Party and the Maori Party (of which Turia is a co-leader) to explore this option along with other anti-smoking initiatives, with the aim of making New Zealand smoke-free by 2025. It also follows the passage of legislation by the New Zealand Parliament in July last year prohibiting the public display of cigarettes and other tobacco products in stores. The relevant provisions of that law will come into force on July 23, 2012. (Smoke-Free Environments (Controls and Enforcements) Amendment Act 2011 (July 22, 2011), New Zealand Legislation website.)

Related Developments in Australia and the UK

New Zealand has been paying close attention to the development and outcomes of plain packaging legislation in Australia, enacted in November 2011 and due to come into force in December 2012, requiring cigarettes to be contained in olive green packets that have no logo, brand imagery, or promotional text. (Tobacco Plain Packaging Act 2011 (Cth); Tobacco Plain Packaging Regulations 2011 (Cth).) New Zealand and Australia have previously largely harmonized their rules relating to tobacco product labeling, including similar requirements for graphic health warnings to cover 30% of the front of cigarette packets and 90% of the rear. (Press Release, Hon. Damien O'Connor, Graphic Warnings for Cigarette Packets (Nov. 2, 2006); Press Release, Hon. Tariana Turia, Minister Commends Plain Packaging Move in Australia (Nov. 22, 2011).)

The Australian plain packaging legislation, the first of its kind in the world, is currently the subject of litigation in Australia's High Court involving four major tobacco companies. The High Court has reserved its decision in the case following the completion of the hearing last week. The companies argue that the requirement for plain packaging amounts to a removal of their intellectual property by the government and is unconstitutional. (Kerrin Binnie, Plain Packaging Hearing Wraps Up in High Court, ABC NEWS (Apr. 19, 2012)).

In addition, two countries, Honduras and Ukraine, have recently lodged complaints against Australia with the World Trade Organization in relation to the legislation. (Dispute Settlement, Australia – Certain Measures Concerning Trademarks and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging [Complainant: Honduras], WT/DS435 (Apr. 4, 2012), WTO website; Dispute Settlement, Australia — Certain Measures Concerning Trademarks and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging [Complainant: Ukraine], WT/DS434 (Mar. 13, 2012), WTO website;Lanai Vasek, Australia's Landmark Tobacco Packaging Laws Face World Trade Challenge, THE AUSTRALIAN (Apr. 6, 2012).)

Last week, the United Kingdom also launched a three-month consultation process examining the issue of plain packaging. (Press Release, Department of Health, Consultation on Tobacco Plain Packaging Launched (Apr. 16, 2012); Standardised Packaging of Tobacco Products, Department of Health (last visited Apr. 19, 2012). See also David Jones, Big Tobacco Groups Fear Spread of Plain Packaging, REUTERS (Apr. 19, 2012).)

Reaction of Tobacco Companies and Anti-Smoking Lobby to Proposed NZ Legislation

Following the announcement in New Zealand of the proposed legislation on plain packaging, Philip Morris New Zealand released a statement saying that it “will be submitting its detailed views on plain packaging for tobacco products as part of the public consultation. These views include that plain packaging will not reduce smoking rates, will trigger a variety of adverse consequences and violates numerous international laws and trade treaties.” (Press Release, Philip Morris, Philip Morris on Tobacco Plain Packaging Consultation, SCOOP (Apr. 19, 2012).) British American Tobacco New Zealand (BATNZ) also opposed the move, stating: “[p]ackaging is an important element of any company's intellectual property. A government prohibition on a company's right to use their own intellectual property constitutes property removal and sets a disturbing precedent for businesses throughout New Zealand.” (Press Release, BATNZ, Plain Packaging of Tobacco Products a Step Too Far, SCOOP (Apr. 19, 2012).)

Both companies raised the prospect of counterfeit products being sold on the black market, resulting in an increase in smoking due to the availability of cheap cigarettes, as an argument against plain packaging. (Press Release, Philip Morris, supra; Press Release, BATNZ, supra.)

On the other hand, the anti-smoking organization Action on Smoking and Health (ASH) welcomed the announcement, saying:

There is simply no excuse to keep pretending this is a regular consumer product that needs attractive brands. Killing off branding takes us a step closer to treating cigarettes like the deadly drug they are. Inevitably the tobacco companies will be firing up their legal teams to challenge this, and we hope the Government see past what amounts to little more than bully boy threats designed to waste time and money. (Press Release, ASH NZ, ASH Welcomes Minister Turia's Tobacco Plain Packaging Plans for New Zealand, SCOOP (Apr. 19, 2012).)

In her April 19 statement, Turia said that “[s]moking is the single biggest cause of preventable death and disease in New Zealand, and we must be prepared to take bold steps towards achieving our goal.” She went on to say that she is

confident that we can bring in a plain packaging regime that will meet all our international commitments, including a major global treaty on tobacco control as well as a range of multilateral, regional and bilateral trade and investment agreements. But we are committed to continuing a careful and robust process to develop the policy before we make final decisions. (Press Release, Hon. Tariana Turia, supra.)