EXECUTIVE SUMMARY

This submission draws upon a number of pieces of research and policy papers on the plain packaging of tobacco products including:

1. Becky Freeman, Simon Chapman, and Matthew Rimmer, 'The Case for the Plain Packaging of Tobacco Products' (2008) 103 (4) Addiction 580-590.

2. Matthew Rimmer, 'A Submission to the Senate Legal and Constitutional Committee on the Trade Marks Amendment (Tobacco Plain Packaging) Bill (Cth)', September 2011, https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=dabfcd75-9807-493f-bc99-4a7506bf493b

3A. Matthew Rimmer, 'Tobacco's Mad Men Threaten Public Health', The Conversation, 23 September 2011, http://theconversation.edu.au/tobaccos-mad-men-threaten-public-health-3450

3B. Matthew Rimmer, 'Big Tobacco's Box Fetish: Plain Packaging at the High Court', The Conversation, 20 April 2012, https://theconversation.edu.au/big-tobaccos-box-fetish-plain-packaging-at-the-high-court-6518

3C. Matthew Rimmer, ‘The Olive Revolution: Australia’s Plain Packaging Leads the World’, The Conversation, 15 August 2012, https://theconversation.edu.au/the-olive-revolution-australias-plain-packaging-leads-the-world-8856

3D. Matthew Rimmer, 'No Future?: End the Future Fund's Affair with Big Tobacco', The Conversation, 13 September 2012, https://theconversation.edu.au/no-future-end-the-future-funds-affair-with-big-tobacco-9315.

4. Matthew Rimmer, 'The Plain Truth: Australia, Tobacco Control, and South East Asia', East Asia Forum, 7 September 2012, http://www.eastasiaforum.org/2012/09/06/the-plain-truth-australia-tobacco-control-and-southeast-asia/

5. Matthew Rimmer, ‘Big Tobacco and the Trans-Pacific Partnership’, Tobacco Control, 2012.

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

Recommendation 4 The New Zealand Government should emulate the legislative model of The Tobacco Plain Packaging Act 2011 (Cth).

Recommendation 5 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 (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 6 The New Zealand Government 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 7 The New Zealand Government, though, 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.