Editorial: Revive plain packaging law for cigarettes

A Philip Morris challenge to Australia's plain packaging laws for tobacco has been thrown out.
Sydney Morning Herald

A Philip Morris challenge to Australia's plain packaging laws for tobacco has been thrown out.

OPINION: The next step in New Zealand's war on tobacco was supposed to be "plain packaging" – stripping cigarette packets of their branding, and replacing them with a bland colour and the familiar gruesome health warnings.

But even though the Government approved the plan, and a bill passed its first reading in Parliament early last year, the law was put into hibernation.

That happened because Australia's plain packaging law, the model for New Zealand's plans, had come under challenge from several quarters. Five countries took cases to the World Trade Organisation claiming the law was trade-restrictive. Then the tobacco giant Philip Morris launched its own attack on the law using "investor-state dispute settlement" provisions in an Australia-Hong Kong trade deal.

The WTO suits are mostly still live. (One, Ukraine's, partly funded by British American Tobacco, was dropped earlier this year).

But last week, momentously, the Philip Morris challenge was thrown out by a Singapore-based tribunal, which ruled unanimously that it had no jurisdiction to hear the claim.

This should give New Zealand enough confidence to revive its own law and push on with plain packaging here. The prospect of an expensive legal battle – or even a monstrous payout – is an ugly one. But so are years of sitting around waiting for long-winded international arbitration decisions to play out before pressing on with an important new policy.

The idea that tobacco companies should sue national governments for public-health regulations is offensive. The fact that such lawsuits delay new rules in other countries is similarly galling.

Big Tobacco's basic premise – that governments that pass tobacco-control laws are depriving it of future profits, and thus owe it compensation – is also, it seems, unlikely to pass muster in any legal forum.

One Australian legal academic, the University of Notre Dame's Tomas Fitzgerald, says the lawsuits are based on nonsense and are "more reflective of the state of the tobacco industry than objective legal fact". 

The recently-inked Trans-Pacific Partnership had a special provision diminishing the rights of tobacco companies to sue governments. Earlier investor-state settlement mechanisms, whatever their other problems, usually allow governments to pass public-health regulations.

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Trade Minister Todd McClay makes that point when he insists that New Zealand is "well-positioned" to defend a legal challenge against plain packaging, with a stronger treaty than Australia's. If that is the case, what is the hold-up? McClay should take his tough talk and put it into the statute books.

Prodded along by the Maori Party, the Government's record on tobacco control is moderately good. It has repeatedly hiked taxes on cigarettes, though it must keep raising them. Its action on plain packaging was initially forthright, but now looks lethargic. The early evidence out of Australia suggests the policy has measurable impacts on quitting rates and dissatisfaction with smoking.

Plain packaging should be part of the anti-smoking arsenal. The Government should pass its law at the earliest opportunity. 

 - The Dominion Post

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