Cigarettes will kill you: The High Court of Australia & plain packaging of tobacco products

• Author: Matthew Rimmer
• Position: Australian Research Council Future Fellow and Associate Professor in Intellectual Property at Australian National University
• Pages: 20-23

2013 | 1p. 20 | IN THE COU RTS

CIGARETTES WILL

KILL YOU:

the High Court of Australia

& plain packaging

of tobacco products

By Matthew Rimmer,

Australia n Research Council Fu ture Fellow

and Associ ate Professor in Intell ectual

Property at Australian National University

Tobacco, says the World Health Organization (WH O), is “the only legal con sumer

product that kills when use d exactly as intended by the manufacturer.”

With a view to discouraging smok ing and giving effect to the WHO Framework Con-

vention on Tobacco Control, the Australian Parliament passed the Tobacco Plain

Packaging Act 2011 (Cth), in November of that year. The legislation was suppo rted

by all the major political parties.

Labor Attorney-Gene ral Nicola Roxon argued, “Plain packaging means that the

glamour is gone from smok ing and cigarettes are now exposed for what they are:

killer products that destroy thou sands of Australian families.”

The leader of the Coalitio n Opposition, Tony Abbott, acknowledged, “This is an

important health m easure. It’s important to get smoking rates down further.” The

Greens also suppor ted the measure, and called for the Future Fund (an independently-

managed fund into which the Australian government deposits its budget surplus to

meet future superannuation liabilities) to end its tobacco investments.

On December 1, 2012, Australia became the rst country in the world to requ ire that

tobacco products be sold in olive-colored plain packaging. Australia’s Tobacco Plain

Packaging Act 2011 (Cth) regulates the retail packaging and appearanc e of tobacco

products, requiring plain, olive-colored packaging emblazoned with public health

warnings and graphic im ages of smoking-related diseases. The aim is to improve

public health by discouraging people from smoking or using tobacco products.

Following the law’s enactment, a number of tobacco compa nies (led by British

American Tobacco and Japan Tobacco International) ch allenged the legislation. This

article provides an eyew itness account of oral arguments made in the High C ourt of

Australia in the plain packag ing case; and an analysis of the ensuing decisio n which

found in favor of the Australian governme nt (also referred to as the Commonwealth).

ORAL ARGUMENT

British American Tobacco and Japan Tobacco International brought legal action

against the Australian govern ment in the High Court of Australia, claiming th at the

Act amounts to an acquisition of prope rty on less than just terms unde r the Australian

Constitution. Phillip Morris Ltd and Imperial Tobacco joined the case, and supported

their fellow tobacco companies.