Plain Packaging of Tobacco Products: Human Rights Implications (Central European University)

Activity: Talk or presentationInvited talk


Australia was the first country to enact, in 2011, plain packaging legislation of tobacco products. As a result of this legislation, tobacco manufacturers are prevented from using their figurative and shape marks (i.e. trade marks protecting logos and the get up of cigarette packages) on the packaging of their goods. Only word marks (i.e. the brand name) can now be used, and on a specified section of the package using a standard font and size. Plain packaging is accompanied by legislation requiring that packaging of tobacco products bear health warnings consisting of shocking images and text aimed at informing consumers of the severe threat that smoking poses to human health. The underlying policy justification for plain packaging is the protection of the human right to health by reducing tobacco consumption and smoking prevalence, especially amongst teenagers. Many countries have followed Australia’s lead and enacted plain packaging legislation in recent years, including the UK,
Ireland and France. Although plain packaging is said to target solely the ability of trade marks to function as advertising signals that incite consumers to purchase unhealthy goods, tobacco manufacturers argue that the core function of a trade
mark (i.e. to signal the commercial origin of goods) is also affected as a result of these measures. Therefore, they have challenged the validity of plain packaging legislation before domestic and international tribunals on the basis of their fundamental right to (intellectual) property. Although these challenges have so far been unsuccessful, there is room to argue that the balancing exercise could tilt in favour of trade mark owners if they were to invoke an additional fundamental right that is arguably also affected by plain packaging: freedom of expression. The question then becomes: how do trade
marks and freedom of expression interact? And, more importantly, how can it lead to a (re)balancing of fundamental rights in plain packaging? These are the fundamental questions that we will explore and discuss during the presentation.
Period4 Nov 2019
Held atCentral European University, Hungary