The Revitalisation of the Object and Purpose of the TRIPS Agreement

The limited role the objectives and principles of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) (Arts 7 and 8) have played so far in the interpretation and implementation of its substantive provisions has often been criticised. The WTO Panel and Appellate Body Reports in the ‘Australia—Plain Packaging’ dispute are likely to change this situation for the future as, for the first time, the World Trade Organization (WTO) dispute settlement bodies fully engaged with Arts 7 and 8 to interpret Art 20 relative to the use of trade marks. Reliance on these provisions led the Panel and the Appellate Body to conclude that there are legitimate reasons for which Members may encumber trade mark use. The awakening of these two long dormant provisions could have a fundamental impact in offering the possibility of a more flexible reading of TRIPS. It could indeed secure the adaptability of intellectual property rights to the evolution of economic, technological and social circumstances by guaranteeing a more balanced interpretation of the limitations and exceptions included in the Agreement, for example, as advocated several years ago by a group of international IP scholars in the ‘Declaration on a balanced interpretation of the three-step test’. Furthermore, the use of these two provisions could serve as a gateway for the taking into account of ethical imperatives, supported by international human rights in the interpretation of the TRIPS norms, such as, for example, public health imperatives, crucial in the context of pandemics. Such a reading has been advocated in the past and the ‘Plain Packaging’ reports might lead to a more frequent and welcome reliance on human rights arguments in the context of international trade law.

Straw cigarette branding: misleading descriptors and a new Marlboro man

BackgroundStraw cigarettes are hand-rolled tobacco in a corn straw, common in Brazil and believed to be less harmful by consumers. Traditionally consumed in rural areas and by men, a recent increase in use among young people in urban areas was observed. This study assessed marketing appeals of straw cigarette packaging in Brazil.MethodsFollowing a systematic protocol, unique straw cigarette packs were purchased in 2013, 2016 and 2019 from three cities: Manaus, Salvador and São Paulo. Packs were double-coded for the absence/presence of marketing appeals (ie, luxury/quality, masculinity, classic/timeless, flavours and less harm).ResultsThe number of unique straw cigarette packs purchased as part of the overall sample increased in the most recent collection: 2.3% (n=3), 1.3% (n=2) and 15.5% (n=27) in 2013, 2016 and 2019, respectively. Across the years, all packs presented luxury/quality elements (eg, images of crests); 93.8% (n=30) included the word ‘artisanal’. Masculine appeal (eg, images of men) was present on 56.3% (n=18) of packs. Almost half had classic/timeless elements, including the words ‘tradition’/‘original’. In 2019, 59.3% (n=16) of the packs were flavoured compared with none in previous years. Over a quarter of all packs presented a less harm appeal (eg, ‘smooth’).ConclusionWe identified an increase in availability of unique straw cigarette packs, strong branding and use of misleading descriptors on the packs. The adoption of plain packaging and the implementation of Brazil’s additive ban could help to reduce the appeal of straw cigarettes and curb the current increase in use among youth.

Towards plain packaging: New Zealand's way forward in the regulation of tobacco products

<p>The New Zealand Government has indicated its intention to legislate for the plain packaging of tobacco products. This paper considers what path New Zealand should take in implementing its own plain packaging regime. Consideration of New Zealand’s particular interests is necessary in determining what constitutes the most appropriate approach to plain packaging for New Zealand. Whether these interests would be best represented through a policy of alignment with Australia or by implementing an alternative approach to plain packaging should inform the way in which the New Zealand Government proceeds with plain packaging. This paper considers alignment with Australia to be the most effective way to address the public health concerns presented by tobacco products and recommends that plain packaging is implemented in alignment with Australia’s plain packaging regime. However, this paper also recognises that a policy of alignment gives rise to certain risks and seeks to demonstrate that there are ways in which these risks may be reduced. New Zealand should consider the implementation of certain measures to reduce the risk of investment arbitration as well as the possibility of variations on the basic position of alignment in order to reduce the risk of WTO claims against plain packaging.</p>

Towards plain packaging: New Zealand's way forward in the regulation of tobacco products

<p>The New Zealand Government has indicated its intention to legislate for the plain packaging of tobacco products. This paper considers what path New Zealand should take in implementing its own plain packaging regime. Consideration of New Zealand’s particular interests is necessary in determining what constitutes the most appropriate approach to plain packaging for New Zealand. Whether these interests would be best represented through a policy of alignment with Australia or by implementing an alternative approach to plain packaging should inform the way in which the New Zealand Government proceeds with plain packaging. This paper considers alignment with Australia to be the most effective way to address the public health concerns presented by tobacco products and recommends that plain packaging is implemented in alignment with Australia’s plain packaging regime. However, this paper also recognises that a policy of alignment gives rise to certain risks and seeks to demonstrate that there are ways in which these risks may be reduced. New Zealand should consider the implementation of certain measures to reduce the risk of investment arbitration as well as the possibility of variations on the basic position of alignment in order to reduce the risk of WTO claims against plain packaging.</p>

THE IMPLICATIONS OF THE WTO TOBACCO PLAIN PACKAGING DISPUTES FOR PUBLIC HEALTH MEASURES

Australia became the first country to introduce standardised or plain packaging laws for tobacco products in 2011. However, they immediately came under direct and indirect challenge from the tobacco industry in various domestic and international fora, including at the World Trade Organization (WTO). The WTO-consistency of Australia's measures was not settled until June 2020, when the Appellate Body upheld two WTO panels’ earlier findings that Australia had acted consistently with its obligations under certain WTO agreements. This article critically analyses the Appellate Body's key findings and their implications for implementing other public health measures. It is shown that these implications are multifaceted, have political, practical and legal dimensions and are likely to reach beyond the WTO dispute resolution system's bounds into other international trade and investment law contexts.

Evaluating the impact of plain packaging among Canadian smokers: findings from the 2018 and 2020 ITC Smoking and Vaping Surveys

BackgroundIn February 2020, Canada implemented plain packaging without any changes to the size and content of health warning labels (HWLs), which were last updated in 2012 (pictorial HWLs on 75% of the pack front and back). This pre-post evaluation study assessed the impact of plain packaging in Canada on: (1) pack appeal; (2) HWL effectiveness; and (3) support for plain packaging. Additionally, a quasi–experimental design was used to assess the Canadian results relative to two comparator countries: Australia, where plain packaging (with new larger HWLs) was implemented in 2012, and the United States (USA), where plain packaging has not been implemented and the same text warnings have appeared on cigarette packs since 1985.MethodsData are from adult smokers who participated in the 2018 and/or 2020 International Tobacco Control Smoking and Vaping Surveys in Canada (n=4600), Australia (n=1834) and the USA (n=3046). Online surveys were conducted before (February to July 2018) and after (February to June 2020) the implementation of plain packaging in Canada. Adjusted regression analyses were conducted on weighted data.ResultsPlain packaging was associated with a significant increase in the percentage of Canadian smokers who did not like the look of their cigarette pack (2018: 28.6% vs 2020: 44.7%, p<0.001), whereas no change in pack appeal was observed among smokers in Australia and the USA over the same period. Plain packaging was not associated with changes in HWL effectiveness in Canada. Support for plain packaging increased significantly among Canadian smokers (2018: 25.6% vs 2020: 33.7%, p<0.001).ConclusionsPlain packaging in Canada substantially reduced pack appeal and increased support for the policy among adult smokers; however, there was no increase in the effectiveness of Canada’s 8-year-old HWLs. The impact of plain packaging on health warning effectiveness may depend on the design of the warnings and length of time since implementation.