OPINION: The Government has spent the past 12 months consulting the public on plans to make tobacco companies sell their wares in plain packets. The tobacco industry has spent the past year instructing their lawyers to prevent a move that would curtail their ability to peddle a product that kills 5000 New Zealanders a year.
The Government is right to push ahead with plain packaging for cigarettes and loose tobacco. Packaging is one of the few remaining methods tobacco companies have to market their products. They do so using bright colours and images to promote tobacco in a way that disguises what it really is - a highly addictive substance that causes debilitating and fatal diseases.
Requiring tobacco to be sold in plain packets will stop branding being used to divert attention from health warnings. It will also help prevent young people from taking up smoking.
Those who argue that plain packaging for tobacco is inconsistent because alcohol, which also causes health problems, will not face the same restrictions miss the point. Alcohol can be safely consumed in moderation. Cigarettes cannot.
Having said that, the Government is also right to delay the implementation until legal action brought by tobacco companies against Australia - where plain packaging has been mandatory since January - has been resolved. Tobacco companies on this side of the Tasman are prepared to pounce with law suits the minute the legislation requiring plain packaging becomes law.
The greatest concern is the potential for New Zealand to face lengthy and costly international trade disputes like those now being fought by Australia. The Dominican Republic, Honduras and Ukraine are challenging its plain packaging laws in the World Trade Organisation and one tobacco company, Philip Morris International, has launched a challenge claiming the rules breach Australia's investment treaty with Hong Kong.
Awaiting the outcome of those cases will allow the Government here to proceed with far more certainty when it prepares its own legislation.
Should the tobacco companies lose, the Government will be able to go ahead with much more confidence that it will also win any challenge. Should the tobacco industry win, the Government will be able to tailor its legislation to mitigate the legal risks.
Of particular concern is New Zealand's own bilateral trade agreement with Hong Kong. According to Daniel Kalderimis, a partner at law firm Chapman Tripp, it was not drafted with the same "care and protection" as more recent agreements, and is the most likely avenue for a challenge.
It remains to be seen who will emerge from the standoff as the victor, but the clear lesson for this and future governments is to ensure all trade agreements contain robust measures that protect New Zealand's sovereign right to regulate the sale and marketing of dangerous products.
As Australia's Attorney-General, Mark Dreyfus, noted when congratulating New Zealand's decision to implement plain packing, the move is "anti-cancer, not anti-trade".
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