Tobacco industry case up in smoke

Dr Matthew Rimmer

The threatened litigation by the tobacco industry against proposed plain packaging laws is part of a larger strategy of seeking to frustrate the regulation of tobacco advertising and branding, according to a leading intellectual property expert.

Speaking at last night’s Senate Legal and Constitutional Committee, Matthew Rimmer, an Associate Professor from the ANU College of Law, said that the proposed new laws would fulfil the Australian Government’s obligations under the World Health Organization Framework Convention on Tobacco Control.

"Under the WHO framework agreement, Australia is required to develop, implement, upgrade and review comprehensive tobacco control strategies, and this, among other obligations, is well reflected in the government’s measures," Rimmer said. "Indeed, the World Health Organization has hailed Australia’s initiative as an exemplary measure which should be followed by other nations.

"It is also clear that the initiative is entirely consistent with the World Trade Organization’s TRIPS Agreement 1994, which recognises that ’members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health’.

"In addition, the Tobacco Plain Packaging Bill 2011 and the Trade Mark Amendments (Tobacco Plain Packaging) Bill 2011 are clearly within the Commonwealth’s broad legislative power to regulate trade mark law and policy.

"The outlandish, greedy submissions for billions of dollars in compensation for an acquisition of property under the Australian Constitution are without merit, and will no doubt be given short shrift by the High Court of Australia," Rimmer said. "In my opinion, the tobacco industry’s threatened litigation is largely vexatious."

Rimmer noted that tobacco-related illness caused more than 5,200 deaths and over 44,000 hospitalisations each year in NSW alone, and that the annual social cost of tobacco use in that State was over $8 billion.

"Rather than ask whether the tobacco industry should be compensated for the plain packaging of tobacco products, the better question is whether the tobacco industry should provide full and comprehensive compensation for the untold damage it has caused to the health and well-being of Australian citizens.

Rimmer also called for a Parliamentary inquiry into the role of the tobacco industry in treaty negotiations, litigation, political donations, lobbying and the funding of think-tanks and consultants in Australia.