The future

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):

. . . the name used to distinguish that kind of tobacco product from other tobacco products that are supplied under the same brand, business or company name, by reference to one or more of the following:

 (a) containing or not containing menthol;

 (b) being otherwise differently flavoured;

 (c) purporting to differ in strength;

 (d) having or not having filter tips or imitation cork tips;

 (e) being of different length or mass.

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.

This image depicts a pack of cigaretts that are branded as 'Peter Stuyvesant + Loosie'

Figure 8.1 Imperial Tobacco’s newly named brand ‘Peter Stuyversant + Loosie’.

Plain packaging beyond Australia

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

DFAT [the Department of Foreign Affairs and Trade], that often sticks very much to its foreign affairs diplomacy, . . . was a bit taken aback how many requests in different countries they were getting for packets and information and advice on how it had happened, and most of that started post the High Court decision.

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:

In light of this report and the responses to the previous consultation in 2012, I am therefore currently minded to proceed with introducing regulations to provide for standardised packaging. I intend to publish the draft regulations, so that it is crystal clear what is intended, alongside a final, short consultation, in which I will ask, in particular, for views on anything new since the last full public consultation that is relevant to a final decision on this policy. I will announce the details about the content and timing of that very shortly, but would invite those with an interest to start considering any responses they might wish to make now. The House will understand that I want to move forward as swiftly as possible. (378)

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

31 May 2008

The UK Labour government (Labour) consults on a new strategy for tobacco control, including plain packaging. (379)

30 October 2008

ASH (UK) publishes Beyond smoking kills to mark the 10th anniversary of the white paper Smoking kills and set an agenda for action for the decade to come. (380) The report recommends plain packaging and is endorsed by 100 health organisations including Cancer Research UK and the British Heart Foundation.

25 June 2009

An amendment on standard packaging is tabled to the Health Bill by backbenchers in the Lords and the Commons.

1 February 2010

UK government launches a new tobacco strategy, A smokefree future: a tobacco control plan for England, which includes the possible introduction of standardised packaging. (381) There is opposition within government so a commitment to proceed is not possible, but says  ‘The government believes that the evidence base regarding “plain packaging” needs to be carefully examined. Therefore, the government will encourage research to further our understanding of the links between packaging and consumption, especially by young people. The government will also seek views on, and give weight to, the legal implications of restrictions on packaging for intellectual property rights and freedom of trade.’ BAT says that the government will face a ‘huge fight’ from the tobacco industry if it moves ahead with the plans. Imperial Tobacco calls the proposal a ‘counterfeiter’s charter’.

6 May 2010

New coalition government (led by Conservative Party) formed following UK general election.

24 September 2010

The European Commission launches a public consultation;on a proposal to revise Directive 2001/37/EC which covers health warnings, limits on toxic constituents, etc., for tobacco products. The consultation includes a proposal for plain packaging.

20 November 2010

Following meeting with Australian health minister Nicola Roxon at an international health ministers event, UK health secretary, Andrew Lansley, announces he is investigating the viability of introducing standardised packaging, saying: ‘It’s wrong that children are being attracted to smoke by glitzy designs on packets.’ (382)

30 November 2010

Publication of Healthy lives, healthy people, a public health white paper stating that the government will consider forcing tobacco companies to adopt plain packaging to reduce the attraction of smoking and the number of young people taking up smoking.

1 December 2010

European Union launches a public consultation on the introduction of plain packaging in its revised tobacco products directive.

9 March 2011

UK government publishes Healthy lives, healthy people: a tobacco control plan for England in which it commits itself to consult within the year on putting tobacco products in plain packaging.

17 January 2012

Plain packs protect campaign, spearheaded by Smokefree SouthWest, is launched.

13 April 2012

The UK government launches a public consultation which seeks people’s views on whether or not standardised packaging should be adopted, or whether a different option should be considered.

17 April 2012

Northern Ireland health minister gives his support to standard packs.

15 May 2012

The Tobacco Retailers’ Alliance launches anti-plain packaging postcard campaign.

1 June 2012

Pro-smoking activists threaten and harass health campaigners, reports The Guardian. (383)

15 June 2012

Packaging companies form a group to fight the UK government’s proposals for plain packaging of tobacco products. The nameless group includes Weidenhammer Packaging Group, Payne, Parkside Flexibles Group, Chesapeake and the API Group.

18 June 2012

Following lobbying from the Tobacco Retailers’ Alliance, the consultation documents are made available in Urdu, Gujarati and Tamil and the closing date for the consultation is extended.

20 June 2012

Philip Morris releases reports alleging the systematic review of the evidence is flawed and plain packaging will make counterfeiting easier.

3 July 2012

The Tobacco Retailers Alliance delivers 2,500 No to plain packs postcards signed by staff in independent shops across the UK to the department of health.

6 July 2012

JTI launches £2m advertising campaign against standardised packaging.

19 July 2012

Unite The Union claims plain packaging would ‘inevitably’ lead to 25% job losses in the print industry.

4 August 2012

The National Federation of Retail Newsagents asks its 16,000 members to sign a petition against standard packs.

8 August 2012

FOREST presents a 235,000-strong petition in opposition to plain packaging to the government.

10 August 2012

End of UK consultation.

20 September 2012

Department of health director of promotion announces that South Africa is exploring cigarette plain packaging and will issue a report on its feasibility by the end of this year.

28 September 2012

JTI launches second phase of campaign against plain packaging in the UK.

23 November 2012

A report by Luk Joossens, commissioned by Cancer Research UK, finds that, contrary to industry claims, standardised packs are unlikely to cause extra counterfeiting.

7 February 2013

Ian Paisley Jr MP delivers an open letter signed by 73 fellow MPs who oppose standardised packaging to health secretary Jeremy Hunt.

14 February 2013

Launch of the Smokefree Action Coalition’s The clock is ticking campaign to lobby MPs, and marking six months since the end of the consultation.

5 March 2013

The Guardian reports that the government is planning to legislate for plain cigarette packaging within the year. The next day, a spokesman for the prime minister denies the news, stating that ‘no decisions have yet been taken’.

13 March 2013

The Advertising Standards Authority rules that adverts against standard packs run by Japan Tobacco’s Gallaher last year were ‘misleading’.

15 March 2013

The Scottish Liberal Democrats give full support to standardised packaging after passing a motion of confidence in support of legislation at their conference.

27 March 2013

Scottish public health minister announces the Scottish government’s support for standard packaging.

8 April 2013

JTI rolls out phase three of its anti-plain packaging campaign.

17 April 2013

Responding to a question in parliament on standardised packaging, health minister says that the government is currently taking a ‘careful look’ at all the evidence submitted as part of the department of health’s public consultation.

19 April 2013

Public health minister Anna Soubry says she is ‘persuaded’ by the evidence on standardised packaging.

3 May 2013

News that UK government is to abandon standard packaging plans surfaces among accusations that the chief Tory strategist, Australian Lynton Crosby, is behind the move due to his links with the tobacco industry. (384) It subsequently emerges that his firm, Crosby Textor, is in the pay of Philip Morris.

8 May 2013

On the morning of the Queen’s Speech, which sets out the government’s legislative agenda, the health secretary says that no decision has been made regarding standard packs, adding that ‘just because something is not in the Queen’s Speech, doesn’t mean the government cannot bring it forward as law.’

28 May 2013

The Irish government announces its intention to ban cigarette pack branding.

21 July 2013

A summary report on the consultation is published, together with a written ministerial statement, in which the secretary of state for health says that the government ‘has decided to wait until the emerging impact of the decision in Australia can be measured before we make a final decision on this policy in England’. (385)

18 November 2013

A cross-party group of peers tables an amendment to the Children and Families Bill to introduce standardised tobacco packaging at report stage. This is a crucial step, as the government knew that the amendment was likely to pass in the Lords and may well pass in the Commons.

28 November 2013

Facing possible defeat in the House of Lords over the amendment, the government announces it will introduce its own amendment to the Children and Families Bill to give the secretary of state for health the power to introduce standardised packaging through regulations, while at the same time launching a review of the public health evidence headed up by eminent paediatrician, Sir Cyril Chantler. The amendment passed without dissent in the Lords.

10 February 2014

Amendments to the Children and Families Bill are passed in the Commons 453 for and 24 against – this is a whipped vote but this is a government which has faced significant rebellions and only a tiny minority voted against. (386) The opponents, in forcing a vote, have been very helpful in clarifying the level of support. Standardised packaging covers the whole of the UK.

13 March 2014

The Children and Families Bill becomes law after receiving royal assent.

3 April 2014

Paediatrician Sir Cyril Chantler publishes his report in which he concludes that standardised packaging would have a positive impact on public health.

27 June 2014

Draft regulations on standardised packaging published for public consulation.

7 August 2014

Closing date for submissions.


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:

[Philip Morris International’s] formal request to the [United States Trade Representative] that the TPP be used to extend IP rights, harmonise the process of regulatory formation, and provide a comprehensive system of ISDS [Investor-State Dispute Settlement] reflects the contents of leaked drafts of the TPP agreement. These suggest the TPP will extend IP protection to trademark use, strengthen corporate influence in regulatory formation and provide tobacco companies with extensive powers to litigate against governments directly. Although the extension of IP protection is subject to exceptions for measures aimed at promoting public health, the precise scope of these exceptions is unclear. Consequently, all three measures are likely to increase the tobacco industry’s policy influence and to deter governments from introducing plain packaging, albeit in different ways.

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:

Australia is a world leader in tobacco control. It is incorrect for an ‘observer’ at the recent Trans-Pacific Partnership talks in Singapore to suggest Australia is blocking the right of other TPP parties to follow Australia’s lead. My primary focus in the TPP is to advance Australia’s national interest, not compromise it. The Australian government has made it clear it will not accept an outcome that undermines our right to regulate for public health, including on tobacco control. Under existing international trade obligations, Australia has the right to implement tobacco control measures, such as plain packaging for tobacco products, in the interests of public health. Australia is very happy to consider any proposal in the TPP that confirms this right. Ultimately, Australia will only sign up to a TPP deal that includes appropriate safeguards for public health. (398)

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.