RECOMMENDATIONS

Recommendation 1 New Zealand should introduce the plain packaging of tobacco products in order to implement the World Health Organization Framework Convention on Tobacco Control 2003 – in particular, Articles 11 and 13 of the agreement, and the accompanying guidelines.

Recommendation 2 New Zealand should implement plain packaging of tobacco products, without delay or hesitation. There is no good reason to wait for the resolution of the five disputes between Australia and other countries in the World Trade Organization. Australian Government has a strong case. Its opponents have been seeking to stall and delay the disputes.

Recommendation 3 In my expert opinion, the plain packaging of tobacco products is consistent with the TRIPS Agreement 1994. In particular, the measure is consistent with Article 8 (1) of the TRIPS Agreement 1994, which clearly acknowledges that ‘members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.’

Recommendation 4 The plain packaging of tobacco products is consistent with the Agreement on Technical Barriers to Trade 1994

Recommendation 5 The New Zealand Parliament should emulate the Australian legislative model of The Tobacco Plain Packaging Act 2011 (Cth).

Recommendation 6 The New Zealand Government should take notice of the Australian Parliamentary inquiries into the plain packaging of tobacco products. The Senate Legal and Constitutional Committee report on the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 (Cth) is particularly instructive. The Senate Legal and Constitutional Committee considered and rejected many of the arguments raised by Big Tobacco in respect of the plain packaging of tobacco products – for instance, in relation to counterfeiting; freedom of speech; and alleged impacts upon other industries.

Recommendation 7 The New Zealand Parliament should take notice of the ruling by the High Court of Australia in JT International SA v. Commonwealth of Australia; British American Tobacco Australasia Limited & Ors v. Commonwealth of Australia [2012] HCA 43.

The High Court of Australia summary noted:

‘On 15 August 2012 the High Court made orders in two matters concerning the Tobacco Plain Packaging Act 2011 (Cth) ("the Act"). Today the High Court delivered its reasons in those matters. A majority of the High Court held that the Act was valid as it did not acquire property. It therefore did not engage s 51(xxxi) of the Constitution, which requires any acquisition of property effected by a Commonwealth law to be on just terms. The Act imposes restrictions on the colour, shape and finish of retail packaging for tobacco products and restricts the use of trademarks on such packaging. The plaintiffs brought proceedings in the High Court challenging the validity of the Act, arguing that the Commonwealth acquired their intellectual property rights and goodwill otherwise than on just terms. A majority of the Court held that to engage s 51(xxxi) an acquisition must involve the accrual to some person of a proprietary benefit or interest. Although the Act regulated the plaintiffs' intellectual property rights and imposed controls on the packaging and presentation of tobacco products, it did not confer a proprietary benefit or interest on the Commonwealth or any other person. As a result, neither the Commonwealth nor any other person acquired any property and s 51(xxxi) was not engaged.’

Recommendation 8 The New Zealand Parliament should exclude investor-state dispute settlement clauses from all trade and investment regimes – given the actions by Big Tobacco against Uruguay’s graphic health warnings, and Australia’s plain packaging of tobacco products under investment clauses.

Recommendation 9 The New Zealand Parliament should be concerned about the impact of the Trans-Pacific Partnership upon public health concerns. In particular, there is a need to ensure that tobacco control measures are not undermined by the intellectual property chapter; the investment chapter; the technical barriers to trade chapter; and the text on tobacco control. There is a need to ensure that the Trans-Pacific Partnership does not undermine any of the tobacco control measures contemplated by the World Health Organization Framework Convention on Tobacco Control 2003 – whether now, or in the future.

Recommendation 10 The New Zealand Parliament and the New Zealand Government should play a leadership role in the Pacific, and promote the adoption of measures, such as graphic health warnings, and the plain packaging of tobacco products in the region. Such leadership would support the World Health Organization, and the World Health Organization Framework Convention on Tobacco Control 2003.