AUSTRALIA
On 29 April 2010, the then Australian Prime Minister announced his intention to submit proposed legislation in 2011 that would mandate cigarettes to be sold in plain packaging from 1 July 2012. This move came shortly after a report by the National Preventative Health Taskforce and a Private Member's Bill in the Senate had revived the idea of plain packaging.
On 7 April 2011 the Government released an exposure draft Tobacco Plain Packaging Bill 2011 and Consultation Paper for public comment. Over 2000 submissions and letters were sent to the Government during the consultation.
On 6 July 2011, the Tobacco Plain Packaging Bill and associated Trade Marks Amendment (Tobacco Plain Packaging) Bill were introduced into the Lower House of the Australian Parliament and were then referred to the House of Representatives’ Standing Committee on Health and Ageing.
The Committee invited interested persons and organisations to submit their views on the proposal and on 22 August 2011, the Committee issued its advisory report on the inquiry into Tobacco Plain Packaging. According to the report, the Committee recognised the “potential financial implications of this legislation for the tobacco industry (manufacturers, importers and retailers) and complex legal issues relating to intellectual property and trade marks” but considered these issues to be beyond its remit and suggested that such issues should have been referred to a different Committee. The impact on business as well as legal and intellectual property issues were therefore not examined in Committee before the bill proceeded to the parliamentary vote.
On 24 August 2011 the House of Representatives passed both the Tobacco Plain Packaging Bill and the Trade Marks Amendment (Tobacco Plain Packaging) Bill. Both Bills have now been referred to the Senate for further consideration.
Prior discussions on plain packaging
The consideration of plain packaging is not new in Australia. It had been raised in the mid-1990s in the Australia Senate Community Affairs References Committee which heard numerous views on plain packaging for tobacco products. The Committee published its report in December 1995 in which it concluded that:
No evidence
While some evidence suggested that generic [plain] packaging would reduce the attractiveness of cigarettes for children, other evidence raised some doubts concerning the effectiveness of this approach. The Committee believes that more research needs to be undertaken into the role generic packaging could play in an integrated strategy addressing the problem of adolescent smoking. The Committee considers that, on the basis of the evidence received, there is not sufficient evidence to recommend that tobacco products be sold in generic packaging.
Source: Report of the Senate Community Affairs References Committee,
"The Tobacco Industry and the Costs of Tobacco-Related Illness", December 1995, Para 3.54 - excerpt.
International obligations
As it prepared to respond to the Senate, the Australian Government sought advice
on the legal and constitutional barriers to generic packaging. Finally in
September 1997, the Government told the Senate Community Affairs References
Committee that the merits of plain packaging required further investigation
still.
No evidence
...any attempt to use these powers to introduce further tobacco control legislation needs to be considered in the context of the increasingly critical attention being focused on the necessity, appropriateness, justification and basis for regulation by such bodies as the Office of Regulatory Review, the High Court, and Senate Standing Committees. In addition, further regulation needs to be considered in the context of Australia's international obligations regarding free trade under the General Agreement on Tariff and Trade (GATT), and our obligations under international covenants such as the Paris Convention for the Protection of Industrial Property, and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
To date, generic packaging of tobacco products has not been implemented anywhere in the world. As such, there is no international experience of the effect of generic packaging on consumer behaviour. In addition, there is limited primary research on the potential effect of generic packaging on the factors underlying or relevant to the uptake and cessation of tobacco consumption.
Source: Government response to the Report of the Senate Community Affairs Reference Committee,
September 1997, pages 29-30 - excerpt.
Illicit trade in Australia
“The size of the illicit tobacco market, represented as a proportion of the licit tobacco market, in Australia for 2010 is estimated to be equivalent to 15.9 per cent of the licit tobacco market. The estimated 2.7 million kilograms of illicit tobacco consumed represents foregone tobacco excise revenue of approximately $1.1 billion”.
Source: Deloitte (Illicit trade of tobacco in Australia), February 2011.
According to the Australian Customs and Border Protection Service’s Annual Report 2008-9, seizures over the past 3 years, through the sea cargo stream alone, represented a potential revenue loss of $214 million. In 2008, 169 tonnes of tobacco leaf and 50 million cigarette sticks were seized.
Source: Australian Customs and Border Protection Service's Annual Report 2008-9
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