Study Forum

This study explores the potential impact of the Australian Plain Packaging Act 2011 (APPA) on public health by analyzing its functional and legal properties.

Ch. 1 is devoted to the analysis of functional properties of APPA. By preventing socially beneficial functions of trademarks, APPA is bound to generate two significant threats to public health. The first threat represents creation of an uncontrollable “brandless” tobacco market, which is bound to generate much the same harmful effects known from the black “brandless” market for illegal drugs. The second threat represents creation of chaotic situation on the marketplace called counterfeiting legalization. Bearing in mind that even noted plain packaging advocates acknowledge the “little effect” of plain packaging in the course of trade, it then follows that APPA is likely to worsen public health.

Ch. 2 is devoted to legal aspects. While Article 11 of the Framework Convention on Tobacco Control (FCTC) represents a perfectly acceptable legal basis for combating inappropriate marketing practices, it is shown that APPA extends well beyond its scope. Moreover, it contains a cardinal self-contradiction, because it unmistakably recognizes that none of prohibited tobacco trademarks is either false, misleading or erroneous in the sense of Article 11 FCTC (and in the sense of Article 6quinquies of the Paris Convention). And the analysis of APPA in respect of the TRIPS Agreement reveals that it generates a substantial impact on a much greater number of the Agreement’s articles, well beyond those containing provisions on trademarks.

Ch. 3 is devoted to the analysis of the claim put forward by a leading Australian plain packaging advocate, who justifies tobacco trademark limitations in the course of trade in order to prevent their most harmful effect outside the course of trade. Though the claim is not supported by evidence and disregards the principle of exhaustion of trademarks, the main point is that the claimed harmful “biggest effect” can be effectively eliminated by an alternative solution without the need to prohibit use of trademarks in the course of trade. By this, the solution does not generate any public health threats inherent to current plain packaging regime and is fully consistent with FCTC and TRIPS Agreement.