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Plain packaging challenge dismissed: World Trade Organization finds in favour of Australian laws

Friday 29 June, 2018

A long-awaited decision by the World Trade Organization (WTO) panel hearing the challenge to Australia’s tobacco plain packaging laws has been released today, finding in favour of Australia and dismissing the claims brought by Cuba, the Dominican Republic, Honduras, and Indonesia.

The panel found that Australia’s laws do not breach its WTO obligations relating to intellectual property protection or restrictions on international trade.

In welcoming the decision today, Cancer Council Victoria said the verdict validates Australia’s ongoing leadership in tobacco control despite legal threats from Big Tobacco.

Kylie Lindorff, Manager of Tobacco Control Policy at Cancer Council Victoria, said Australia’s plain packaging laws were a resounding public health success, not only meeting objectives such as reducing the appeal of tobacco products and increasing the impact of health warnings, but also contributing to falling smoking prevalence.

The Government’s post-implementation review showed that plain packaging resulted in a significant drop in smoking prevalence (14 years +). This decline accounted for one-quarter of the total decline in prevalence over the period of the review and Australia had 100,000 fewer smokers as a result of implementing plain packaging.

“Plain packaging is an important part of Australia’s long-standing and comprehensive approach to tobacco control.”

This comprehensive approach is associated with sustained declines in smoking among adults and record low rates of youth smoking. An article recently published in the Lancet noted that Australia is one of only 13 countries (out of 195), in the world where smoking declined both between 2005 and 2015 as well as between 1990 and 2005 (ABS National Health Survey data). The last national survey showed smoking at an all-time low among teenagers in Australia, with only 5% of secondary school students aged 12 to 17 reporting smoking in the last 7 days in 2014.

Ms Lindorff said the decision should give confidence to countries considering tobacco plain packaging, and those who have already followed Australia’s lead.

“Plain packaging has already been adopted in six other countries, and is currently under consideration in at least 19 other jurisdictions,” Ms Lindorff said.

The unsuccessful challenge is the latest in a series of legal challenges to Australia’s plain packaging laws.

Jonathan Liberman, Director of the McCabe Centre for Law and Cancer, said the WTO dispute is the third failed attempt to undermine plain packaging in Australia through the use of laws and treaties.

“The WTO decision comes more than six and a half years after the legislation was enacted, during which time a constitutional challenge in the High Court and an investment treaty challenge, have also been dismissed.”

“Today’s decision continues an overwhelming trend of legal challenges to tobacco control measures failing around the world and will generate further global momentum for stronger tobacco control laws,” Mr Liberman said.

Cuba, the Dominican Republic, Honduras or Indonesia can appeal the panel decision to the Appellate Body of the WTO.