Tobacco firms lose key Australia plain packet case

Cigarette packs with health warnings. REUTERS FILE PHOTO

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SYDNEY - Global tobacco firms lost a "watershed" court challenge to Australia's plain packaging laws for cigarettes on Wednesday in a closely-watched case health advocates said will have a worldwide impact. The Southeast Asia Tobacco Control Alliance (SEATCA) said the legal victory should inspire ASEAN members to pursue their initiatives against big tobacco.

The High Court of Australia ruled the measures, forcing cigarettes and tobacco products to be sold in drab, uniform packaging with graphic health warnings from December 1 this year, did not breach the country's constitution.

Four companies led by British American Tobacco (BAT) had challenged the law, claiming it infringed their intellectual property rights by banning brands and trademarks from packets, and was unconstitutional.

But the court rejected the argument by BAT, Japan Tobacco International, Imperial Tobacco, and Philip Morris that the law represented "an acquisition of (their) property otherwise than on just terms."

"At least a majority of the court is of the opinion that the Act is not contrary to (Australia's constitution)," the court said in a brief notice of judgment.

The court's full reasons will be delivered at a later date, and the tobacco firms were ordered to pay the government's legal costs.

They cannot appeal further in the Australian legal system.

Canberra estimates there are 15,000 deaths nationally each year from tobacco-related illnesses and that smoking costs more than Aus$30 billion (US$31.4 billion) a year in healthcare and lost productivity.

Attorney-General Nicola Roxon said the case was "a victory for all those families who have lost someone to a tobacco related illness" and should be a "clarion call to every country grappling with the costs and harm of tobacco."

"This is a watershed moment for tobacco control around the world," she said in a statement. "Australia's actions are being closely watched by governments around the world. Other countries might now consider their next steps."

Britain, Canada, and New Zealand are mulling similar measures, and Roxon said China, South Africa, and the European Union were also following the Australian case with interest.

"The message to the rest of the world is big tobacco can be taken on and beaten," she said.

Mike Daube, head of an expert panel that originally recommended plain packaging to Canberra, said it was "the biggest defeat for the global tobacco industry that I've seen in 40 years."

"Now this decision's through I think we're going to see plain packaging in the UK, we're going to see it in New Zealand, we're going to see it in Norway," he told Sky News.

"It really is the tobacco industry's worst nightmare come true."

BAT said it would respect the "bad law," but warned it would cause black-market cigarette sales to skyrocket as the packaging would be easy to fake and so "only benefit organiZed crime groups."

Philip Morris noted that a number of other legal challenges had been launched, including a case in Hong Kong alleging the law breached Australia's bilateral investment treaty with the Chinese territory.

"The legality of plain packaging, including whether Australia will have to pay substantial compensation to Philip Morris Asia, remains at issue and will be considered in other ongoing legal challenges," said spokesman Chris Argent.

Australia is also facing formal complaints at the World Trade Organization over the plan from countries including Honduras, Ukraine, and the Dominican Republic.

Philip Morris said Wednesday's decision would have "no legal bearing on these international cases or on other jurisdictions."

"We believe that Philip Morris Asia's investment treaty case and the WTO challenges are strong," Argent said.

Australia win should inspire ASEAN, says SEATCA

The Bangkok-based Southeast Asia Tobacco Control Alliance (SEATCA) on Wednesday lauded Australia for scoring a huge victory against the powerful tobacco industry after its High Court ruled in favor of its plain packaging law.

In a statement, SEATCA said it hopes this landmark victory by Australia would serve as an inspiration to the Association of Southeast Asian Nations (ASEAN) where some members have yet to enact laws strong enough to reduce tobacco consumption among its citizens. 

“We are elated with this victory. The Australian government should be congratulated for being courageous in pushing for plain packaging on cigarette packs. We also draw inspiration from the Australian government for standing up to the challenge from the tobacco industry and all its artillery for trying to block this move – and winning. This win for Australia prepares the path for the ASEAN," SEATCA Director Bungon Ritthiphakdee said.

Starting December this year, all cigarette packs sold Down Under will be in plain packaging despite strong opposition from the tobacco industry who sued the Australian government alleging violation of intellectual property rights.

SEATCA said Australia’s victory over the industry sends a strong signal to the ASEAN to push for graphic health warnings on cigarette packs. Currently four members of the region have pictorial health warnings on tobacco products. These are Thailand, Brunei, Malaysia, and Singapore. 

SEATCA accused the industry of using devious tactics to stop governments from enforcing pictorial health warnings which were proven to dramatically reduce tobacco consumption and discourage people from initiating smoking.

It said tobacco firms use packaging to lure young people to smoke by using attractive designs such as pastel flowery lipstick intended for young girls, sporty images to reach young boys, and kiddie packs for minors. 

SEATCA also specifically mentioned that while Philip Morris in Indonesia and the Philippines export packs with graphic warnings to Singapore, Malaysia, Brunei and Thailand, the same packaging is not being sold to Indonesians and Filipinos. 

The tobacco industry continues to defy measures to have graphic health warnings on cigarette packs being sold in the Philippines where the industry is dubbed as Asia’s strongest lobby. 

Seventeen million Filipinos smoke, one of the largest smoking population in Asia. Ten Filipinos die every hour in the Philippines because of tobacco-related diseases.

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