Plain packaging laws undermine intellectual property


Yesterday saw the US Chamber of Commerce, the TransAtlantic Business Dialogue, the Emergency Committee for American Trade, the National Association of Manufacturers, the United States Council for International Business and the National Foreign Trade Council warn of the threat to intellectual property if the British government decides to mandate ‘plain packaging’ for cigarettes. They join the European Communities Trade Mark Association, the British Brands Group and the International Trademark Association in voicing their concerns about a policy that would involve the wholesale confiscation of a product’s packaging by the state. The British Brands Group, for example, has told the Department of Health that plain packaging would be ‘contrary to the harmonised EU and international system of trade mark protection with which it is obliged to comply.’

The business community is right to be worried. As the American groups said in their statement yesterday, ‘The rule of law and legal certainty are not just very important for the business community. They are vital to ensuring innovation is encouraged and rewarded and meaningful jobs are created.’ If the matter is settled in court, as seems certain now that the Australian government has passed a plain packaging law, a victory for the anti-smokers would set a legal precedent which would effectively allow bureaucrats to seize the entirety of the packaging of any product which carries a risk to health. As if to underline this threat to the free market, today sees the start of the Commons Select Committee hearings on the government’s alcohol strategy. Although it has gone unnoticed by most of the media, ‘plain packaging and marketing bans’ is listed on the agenda.

Anti-smoking groups will be irritated to see the government move from plain packaging of cigarettes to plain packaging of alcohol with such indecent haste. They have long insisted, against all evidence, that there is no ‘slippery slope’ that leads from tobacco regulation to that of food and drink. The government will surely pull back from outlawing booze brands for the time being and instead focus on minimum pricing, but here, too, there are legal obstacles. European Council Directive 95/59/EC asserts the right of manufacturers and importers to set retail prices and the European Commission has successfully contested attempts by member states to set minimum prices in the past.

None of this guarantees that minimum pricing and plain packaging will never be introduced. The English and Scottish governments may lobby the European Commission for a change to the law, and the courts may decide that tobacco is a special case when it comes to trademarks and intellectual property. There is an expensive and torturous legal road ahead and, despite all the warnings from business groups, politicians may decide to cut a great road through the law to get after the Devil, to quote the famous line from A Man for All Seasons. This is uncharted territory, but it is sobering to note that it is the Conservative party – the erstwhile party of the free market – that is pushing the boundaries of what is acceptable under international trade law in 2012.

Christopher Snowdon is the Head of Lifestyle Economics at the IEA. He is the author of The Art of Suppression, The Spirit Level Delusion and Velvet Glove; Iron Fist. His work focuses on pleasure, prohibition and dodgy statistics. He has authored a number of papers, including "Sock Puppets", "Euro Puppets", "The Proof of the Pudding", "The Crack Cocaine of Gambling" and "Free Market Solutions in Health".

7 thoughts on “Plain packaging laws undermine intellectual property”

  1. Posted 17/04/2012 at 10:57 | Permalink

    And intellectual property undermines property rights…

  2. Posted 17/04/2012 at 17:22 | Permalink

    I disagree with the assertion that the problem here is violation of intelectual property rights, this is about actual property rights. I will start by setting out that as a libertarian (were I born sometime in the past I would have called myself a liberal, however that seems to mean socialist these days) who believes in natural rights I am against the state granting of monopoly that intelectual property is – I also dislike the misuse of the term ‘rights’ to describe them.

    For the state to forbid the inclusion of branding on the packaging of their cigarettes is to violate their basic and natural right to use their property in anyway they see fit (consistent with not infringing on the rights of others of course) – this is almost by definition a violation of property rights. It is also questionable whether this represents a violation of intelectual property ‘rights’ since they will retain exclusive entitlement to use their branding – though it is very difficult to make a logical argument on what is and isn’t IP given that it is entirely artificial and has no origin in natural rights.

  3. Posted 20/04/2012 at 08:37 | Permalink

    i don’t see why governments should intervene in the marketing or branding of tobacco companies. where will all this lead to? will we have plain food packaging? all drive the same cars? wear the same clothes? not that i support smoking, i just don’t like governments acting like that. have you heard of the case in belgium where the governm. leaked information on ingredients (WRONG infromation) of british american tobacco, which of course had a really negative influence on the firm? and nothing has been done to solve this! i must say that i am a little afraid of things that are happening…

  4. Posted 20/04/2012 at 09:08 | Permalink

    One thing is for certain – Labour will be thrown out of Govt for another Prime example of Nanny State Regulation !

  5. Posted 24/04/2012 at 08:12 | Permalink

    yes, it is definetely time for a change of the people in the government! also to keep belgium an interesting place for foreign investment.. we do need that right now.

  6. Posted 29/04/2012 at 19:18 | Permalink

    “As many have warned in the past, freedom is unlikely to be lost all at once and openly. It is far more likely to be eroded away, bit by bit, amid glittering promises and expressions of noble ideals.”
    (Thomas Sowell, 1999)

  7. Posted 29/05/2012 at 09:47 | Permalink

    I don’t think this is a good move, its making every cigarette manufacturer even richer! Its like the advertising rules, now they dont have to spend multi millions on marketing campaigns, but puts every one on the same starting lineup! It defeats the purpose!

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