Jay Kesan | Publications

Last month, Members of Parliament in the U.K. voted in favor of plain packaging on cigarette packs. The vote came a day after Ireland’s president signed a similar bill into law and two years after Australia passed the same law.  The vote is a blow to tobacco manufacturers and a victory for anti-smoking activists.

Like Australia, the U.K. and Ireland will now require cigarettes to be sold in plain or standardized packs. These packs have the same standard shape and color and allow no branding, designs, or logos. Additionally, the packs will feature graphic images of smoking-related illnesses and textual warnings. Companies will be allowed to print the name of their product on the packs, but the font, color, and size will be standardized.

The law takes away Big Tobacco’s ability to make their products look attractive, particularly to young people. The companies invest a considerable amount of time and money in making sure their product looks appealing enough to capture young people’s attention. Reports on the effect of plain packaging seem to confirm the findings: tobacco consumption in Australia fell 12.2% between December 2013 and December 2014.  In another study, Irish teens between 15 and 16 found the plain packages to be unattractive, and those who already smoked said they would quit if plain packages were introduced. Non-smokers said they would not begin smoking if plain packages appeared on shelves.

Big Tobacco views plain packaging as illegal and they are using trademark law to fight plain packaging.  Tobacco manufacturers have trademarks on their product names and package designs, and trademarks are a form of intellectual property.  They urge that the UK legislation is an example of the government taking property away without paying for it.  The UK has statutes that require the government to pay just compensation when it takes private property from a citizen without their consent, similar to the Fifth Amendment in our Constitution.  Cigarette makers argue that even if the property here is not land, and is instead intellectual property—in this case, trademarks—the UK statue should still apply.  While trademarks are typically used to minimize consumer confusion in the market and to protect brands, here we see an interesting use of trademark law to maintain sales of a product that is deemed to be harmful and to perhaps undermine anti-smoking policies. The Lucky Strike cigarette maker has promised to bring legal action if the law passes the UK’s House of Lords, so it then be up to UK courts.

Japan Tobacco International, makers of Camel cigarettes, said the UK law has been rushed without proper scrutiny and consideration purely for political reasons.The law does come at an interesting time:  general election of the next Parliament in the UK is scheduled for May 7th.But the debate about plain packaging is not a new one, as the UK has been actively involved as early as 2013 when Australia passed its own law.

Scotland, France, Finland, Norway, Sweden, and New Zealand are expected to pass similar laws in the near future, and the European Union is also considering it. Though Big Tobacco seems to be fighting a losing battle in Europe, they are on a better footing in the U.S.The FDA lost an action to introduce graphic images on cigarette packs in 2011, and there has been virtually no progress for plain packaging since. Regardless, the empirical data is clear: plain packaging is making a lot of people reconsider smoking, so it may not be long before this matter is brought up once again here at home. 

Author – Jay Kesan

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