The global history of tobacco control is a history of vanguard nations taking what, at the time, seemed like bold, sometimes radical steps. These always attracted derision at the time from the tobacco industry, but sometimes also from the public, the media and politicians.

But there are many examples of pioneering initiatives first introduced by single nations or states then being adopted by large numbers of other nations in subsequent years. The most obvious examples are restrictions and bans on tobacco advertising, smokefree workplaces and public places like restaurants and bars, and most recently, graphic health warnings on packs. In the face of huge opposition from the tobacco industry, Canada was the first nation to introduce graphic health warnings in 2001. By October 2012, this had increased to 63 nations. (205)

Plain packaging is also a good candidate for the continuing history of domino effects because, as a regulatory measure, it is relatively inexpensive for governments to implement, as all packaging costs are borne by the tobacco industry. Government costs consist of any that may be involved in defending their plain packaging legislation and its implementation, and any surveillance costs post-implementation. Note that the High Court of Australia ordered that the tobacco companies bringing the case against plain packaging should pay all costs involved in the action.

Brand names – the last bastion

Plain packaging eviscerates, but does not drive a fatal stake through, the still-beating heart of tobacco industry marketing. The one big opportunity remaining for the industry to brand its deadly products with associations designed to distract its customers from their concerns about health remains with opportunities to name brands in beguiling new ways.

The Australian legislation is silent on any limitations on what companies can call their brands. Variant names are limited in being required to refer to (72):

Here, the industry has considerable latitude to make claims about particular words like ‘smooth’ as referring to flavour, rather than to the characteristics of users. But when it comes to words used to name brands, the Act is an open door for introducing creative brand names. Already one company, Imperial Tobacco, introduced a new brand name to its Peter Stuyvesant brand. ‘Peter Stuyvesant + Loosie’ (see Figure 8.1) was a gimmick innovation that provided one extra cigarette in a pack of 20s and thereby allowed the company to introduce a brand name change while flagging an apparent premium offer of an extra cigarette.

There would be nothing in the Act stopping the company introducing new variations on the core brand name by for example introducing variations like ‘Peter Stuyvesant – Post Sex’ or ‘Peter Stuyvesant – Foreplay’, using words from teenage argot (‘Peter Stuyvesant – Totally Sick’), or in ways that would attract particular subcultures ‘Peter Stuyvesant – Goths’, political orientations ‘Peter Stuyvesant – Liberals’, sporting allusions ‘Peter Stuyvesant – Gold Medals’ and so on.

Plain packaging beyond Australia

There has been great international interest in what Australia has done. Nicola Roxon told us:

As we finish this book, some 20 months after Australia made it illegal to sell tobacco products in fully branded packs, three nations – New Zealand, Ireland and the United Kingdom – are well advanced in their parliamentary processes to introduce plain packaging. Another seven nations (Finland, Turkey, South Africa, Chile, Brazil, France and India) have made statements or have seen developments which portend implementation.

New Zealand

In April 2012 the New Zealand government agreed in principle to introduce plain packaging reforms that were in alignment with Australia’s, pending the outcome of a public consultation process. The public consultation closed in October 2012 and Cabinet considered a report on the consultation in February 2013. The government decided to proceed with plain packaging legislation and a bill was lodged in the New Zealand parliament in December 2013.

The Smoke-free Environments (Tobacco Products and Packaging) Amendment Bill (375) had its first reading in the New Zealand parliament in February 2014. New Zealand associate health minister, Tariana Turia, introduced the bill by stating that ‘when tobacco manufacturers push tobacco, they are not simply selling a stick of nicotine; they are selling status, social acceptance and adventure.’ (376) The bill received overwhelming support with the exception of one dissenting MP from a minor conservative party.

Following the positive first reading results, the bill was referred to the Health Select Committee for public consultation. The committee received more than 17,000 written submissions, the bulk of which were made up of form letters and postcards solicited through a campaign organised by the three major tobacco companies operating in New Zealand. The committee held public hearings in April 2014 and is expected to provide a final report in August 2014. (377)

New Zealand prime minister John Key has repeatedly stated that the bill will not be sent to the governor general for royal assent until the WTO challenges against the Australian plain pack laws are settled.

United Kingdom

In April 2014, the Chantler report on plain packaging concluded that plain packaging would assist in reducing smoking by young people in particular. The British minister for public health, Jane Ellison commended the report in the House of Commons, saying:

The UK has seen intense advocacy for plain packs since 2008. We are grateful to ASH UK for providing the timeline below on how the UK arrived at the ministerial statement of intent cited above. We set it out in detail below to give readers a sense of the time and various stages that are involved from an initial proposal through to the time when legislation is introduced. Throughout this protracted process the tobacco industry seeks to delay and defeat every step.

Table 8.1: Plain packs in the United Kingdom

Ireland

In May 2013 the Irish government, under the leadership of health minister Dr James Reilly, announced it was planning new regulations on tobacco plain packaging, with a planned implementation date in 2014. Reilly is an unwavering advocate of plain packaging of tobacco products, and has stated he his prepared for a legal challenge from the tobacco industry. (387) The tobacco industry and its allies have perpetuated the same myths as they did in Australia that the reforms violate intellectual property law, will lead to increased smuggling and won’t reduce smoking.

In April 2014, the Irish Health Committee presented its report on plain packaging. The recommendations cover almost identical ground to that covered by the Australian legislation. (388) Specific to plain packaging reforms, the report also recommends: (389)

• the standardisation of the size of tobacco packaging
• the inner packaging of tobacco products to be the same colour as the outside surface
• a separate and distinct definition for brand, company and business name so as to prevent tobacco manufacturers from promoting brand variants to the status of brands
• the maximum length/number of characters in brand and variant names.

The bill passed the second stage of its passage through the Irish Senate (Seanad) in June 2014 (390). It seems possible that Ireland may be the second nation after Australia to implement plain packaging.

Early developments in other nations

Since the Australian plain packaging bill passed into law, I have undertaken three WHO multi-country consultancies focused exclusively on plain packaging. One was held in Brunei Durassalam in January 2012, where representatives from 11 nations were present, including several nations not from the south-east Asian region. Another was in Ankara, Turkey, in September 2012, where some 42 nations from the European and Eastern Mediterranean region were present. A third was held in Noumea, New Caledonia, in March 2013, where government representatives from all Pacific island nations attended a South Pacific Commission meeting. A pan-African meeting has also been held in Capetown, South Africa.

Brunei Darussalam, which has very strong tobacco control, is known to have plain packaging under active consideration and has a leader with extreme wealth who would not be disturbed by legal threats.

There is intense interest in India about plain packaging. (295) A national meeting was held on the issue in 2012, with a report published in June 2012. In September 2013, a special session on the issue was included in the Tobacco Endgame Conference in New Delhi, and Indian legal scholars have begun publishing papers on the concept. (391) Indian MP Baijayant ‘Jay’ Panda introduced a private member’s bill on plain packaging in December 2012, but it did not progress.

In July 2014 the High Court of Uttar Pradesh, after being petitioned by an NGO, recommended that the government of India introduce plain packaging. (392)

There is some momentum in France toward plain packing with a report, in May 2014, that the health minister Marisol Touraine would introduce a bill in June for plain packaging. In late September Touraine announced that the policy would be implemented from the beginning of 2016. (393)

South Africa’s health minister Aaron Motsoaledi announced in July 2014 that his nation planned to introduce plain packs from 2015 and was unlikely to wait for the decision of the WTO case with Australia. (394) Turkey also announced at the same time that it would rapidly progress the introduction of the measure from the start of 2015. (395) Chile’s Senate Health Committee endorsed a comprehensive set of tobacco control proposals in July 2014, which included plain packaging.

Finland’s action plan for tobacco control includes a plain packaging proposal. (396) Brazil’s Anvisa, the country’s equivalent of the US Food and Drug Administration, announced in June 2014 that it would be recommending plain packaging. Anvisa was the agency responsible for Brazil’s globally historic ban on all tobacco flavourings, so it has a track record of getting tobacco legislation implemented.

So as of August 2014, nine nations besides Australia have either introduced legislation, are on the cusp of it or have announced their intentions to do so. The global plain pack domino spectacle looks to have commenced.

As we have seen, the tobacco industry has already shown its interest in using international trade treaties to attempt to stop domestic tobacco control policies and legislation that threaten its interests. Fooks and Gilmore (397) have recently reviewed efforts by Philip Morris International to influence the United States Trade Representative to use the multinational TPP for such a purpose. There is virtually no transparency about how the TPP is being negotiated, and other than leaked drafts, no formal access to what has been already decided. Their paper concludes:

First, by increasing litigation risk for legislating states, the extension of IP protection to trademark use will increase tobacco companies’ power to present the costs associated with plain packaging and other policies affecting pack design as prohibitively expensive.

Likewise, proposals such as regulatory review, stakeholder consultation and the use of impact assessments provide the industry with a range of tools to access and feed information into health policymaking. Combined with the TPP’s proposal for states to provide access to ‘supporting documentation’ relating to regulatory measures, analyses and data, which may exacerbate existing information asymmetries between states and multinational corporations, these reforms are likely to facilitate challenges to regulatory innovation under international law. By underpinning these measures with ISDS, which increases the economic costs associated with litigation and institutionally embeds uncertainty in treaty interpretation, the TPP provides a powerful new toolbox for the industry in preventing the introduction of plain packaging and other innovative health measures.

Finally, the lack of transparency in the TPP negotiations illustrates the limitations inherent in the state-centric nature of article 5.3 of the WHO FCTC. Article 5.3 aims to limit tobacco industry involvement in health policy by, among other things, requiring parties to the convention to make interactions between the tobacco industry and public officials as transparent as possible. The USA is a non-party to the convention and is, therefore, under no obligation to make public any involvement of tobacco companies, either directly or through third parties, in TPP policymaking. This enables the tobacco industry to undermine APEC [Asia-Pacific Economic Cooperation] states’ efforts to implement article 5.3 and influence health policy remotely through TPP negotiations.

There has been considerable expression of concern about whether the TPP could be used to thwart other nations covered by the TPP from doing what Australia has on plain packaging, and even whether the current government might be persuaded to sacrifice Australia’s plain packaging laws on the altar of its wider concerns to see the TPP adopted.

Encouragingly here, Australia’s trade minister Andrew Robb has twice gone out of his way to emphasise that the Australian government’s negotiations in the TPP would not see plain packaging somehow sacrificed to the wider terms of the treaty being developed. In a strongly worded letter to The Age newspaper he wrote:

And again later he was reported in the Financial Review, saying: ‘The plain packaging measure was introduced by the previous government from a legitimate public health standpoint.’ (399)

In January 2014, the British retail trade publication The Grocer reported that Imperial Tobacco’s chief in Australia, Melvin Ruigrok, was moving to the UK to help his company ‘gear up for an escalation in the fight against plain packaging’. The article reported an Imperial spokesman explaining that: ‘Melvin brings with him first-hand experience, having successfully led Australia through display bans and plain pack legislation, experience that will be essential as the UK market works through these very same regulatory pressure.’ (400)

‘Successfully led Australia through . . . plain pack legislation’ . . . In the film Monty Python and the Holy Grail, there’s a famous scene where King Arthur fights the Black Knight (see https://www.youtube.com/watch?v=ikssfUhAlgg). Quickly losing two arms, the Black Knight considers the loss ‘only a flesh wound’. Down two arms and a leg, he declares he’s invincible. When King Arthur lops off his other leg, the Knight says ‘right, we’ll call it a draw’. Stan Shatenstein, a long-time analyst of tobacco control argues that, like the Black Knight, the industry’s complete Australian humiliation is already being spun as a ‘success’ because so far, no other country has yet implemented plain packaging.

The history of tobacco control is a history of global dominoes tumbling first slowly, but then very, very quickly. As this book goes to press, there is keen interest to see whether Ireland or the United Kingdom becomes the second nation to legislate on plain packaging. Australia, in being the first nation has hopefully unleashed a virulent, high contagious and deadly agent that should cause immense damage to the tobacco industry over the next decades. In 1985 Hugh Cullman, vice chairman of Philip Morris Companies Inc told an international tobacco industry meeting in Denmark: ‘As one of our Australian colleagues puts it, a sneeze in one country today cause international pneumonia tomorrow!’ (401)

Let us hope that plain packaging becomes as highly contagious as all other platforms of comprehensive tobacco control have over the past three to four decades, and that it proves to be highly resistant to any ‘treatments’ with which the global tobacco industry tries to dowse it.