World Trade Organization panel to hear oral arguments on Australia tobacco plain packaging case from June 1-5, 2015

Monday 01 June 2015

Today a World Trade Organization (WTO) dispute settlement panel will begin to hear oral arguments in claims that Australia’s tobacco plain packaging infringes WTO agreements. The hearing will take place at WTO in Geneva from 1st to 5th June 2015.

The outcome of this case is being watched worldwide by governments, health organizations and tobacco companies alike given the crucial nature of plain packaging as a tobacco control measure. Fiercely opposed by the tobacco industry, plain packaging is recommended by guidelines under the World Health Organization Framework Convention on Tobacco Control, the international tobacco control treaty.

Under plain packaging, health warnings would remain as would product names in a standard size and font, but tobacco company colours, logos and graphics on packages would be banned. The brand portion of package have the same colour (e.g. drab brown) for all brands. Tobacco packages would no longer be mini-billboards promoting tobacco.

Plain packaging was implemented in Australia in 2012, has been adopted in Ireland and the United Kingdom for implementation on 20 May 2016, and is under formal consideration in France, Norway, Sweden, Finland, New Zealand, Singapore, Turkey and South Africa. [1] In France, a plain packaging bill has been approved by the National Assembly and is now before the French Senate.

There are five complainants that have each brought a claim to WTO: Ukraine, Honduras, Indonesia, Cuba and Dominican Republic. These five cases will be heard together next week. Tobacco companies have admitted to paying legal costs for three of the complainants: British American Tobacco for Ukraine and Honduras, and Philip Morris International for the Dominican Republic. [2] At WTO, only governments can initiate proceedings, which is why the tobacco industry is paying legal costs of certain countries.

There are 36 Third Parties that are participating in the proceeding, more than in any previous WTO case. The Third Parties, which are entitled to present their perspective, are: Argentina, Brazil, Canada, Chile, China, Chinese Taipei, Ecuador, Egypt, European Union, Guatemala, India, Japan, Korea (Republic of), Malawi, Malaysia, Moldova, Mexico, New Zealand, Nicaragua, Nigeria, Norway, Oman, Panama, Peru, Philippines, Russia, Saudi Arabia, Singapore, South Africa, Thailand, Trinidad and Tobago, Turkey, United States, Uruguay, Zambia, Zimbabwe.

During the oral hearing, the five complainants, Australia as respondent, and each of the Third Parties will have an opportunity to present argument.

The tobacco industry had previously brought a constitutional challenge in Australia to plain packaging, but this was dismissed by the High Court of Australia on August 15, 2012. [3]

Deborah Arnott, Chief Executive of health charity ASH said:

“The claim that Australia’s tobacco plain packaging infringes WTO agreements is ill founded and has little or no chance of success. The sooner all the legal challenges are settled the better. Then the example set by Australia, and followed by the UK and Ireland, will rapidly spread all round the world.”
The importance of plain packaging was recently emphasized by WHO Director General Dr Margaret Chan at the World Conference on Tobacco or Health [4]: “Despite industry’s best efforts to block plain packaging, the train has already left the station. The evidence base is strong, empirical, and comes from well-qualified, respected, and credible sources. I thank all the researchers who have contributed to this evidence base. We know that plain packaging works.”
Notes and links:

[1] Canadian Cancer Society, “Plain Packaging – International Overview”

[2] Philip Morris Leads Plain Packs Battle in Global Trade Arena. Bloomberg Business 22 Aug 2013
[3] JT International SA v Commonwealth of Australia [2012] HCA 43, High Court of Australia, Order August 15, 2012, Reasons October 5, 2012.

The WTO case is not the only ongoing legal proceeding regarding plain packaging. In Australia, Philip Morris International has brought a further legal proceeding under a Hong Kong-Australia bilateral treaty. In Europe, tobacco companies have commenced legal proceedings against Ireland and the United Kingdom regarding plain packaging requirements in those countries.
[4] Dr Margaret Chan, Director-General of the World Health Organization, Keynote address at the World Conference on Tobacco or Health, Abu Dhabi, United Arab Emirates, 18 March 2015

[5] For fact sheets on the Australian experience with tobacco plain packaging, see:

Contact: Deborah Arnott 020 7404 0242 (w) or 07976 935 987 (m)