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Big tobacco loses High Court battle over plain packaging
August 15, 2012
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Big tobacco loses High Court battle over plain packaging.

August 15, 2012

[highlight=#ffbf40]'We have taken on big tobacco and we have won'[/highlight]

Australian Attourney-General Nicola Roxon fronts the media on the High Court's decision to uphold plain packaging laws.

The Australian federal government has secured a big win over big tobacco with the High Court ruling Labor's world-first plain packaging laws are constitutionally valid.

The decision is expected to have significant influence globally with both the United Kingdom and New Zealand considering plain packaging.

Attorney-General Nicola Roxon with examples of the tobacco plain packaging and warning signs. Photo: Alex Ellinghausen

Health experts have hailed the decision as a major victory for global health.

Advertisement It clears the way for the government to impose a ban on all brand marks and logos on cigarettes, to take effect from December this year.

Large graphic health warnings will dominate the packs and the manufacturers' brand names will be written in a small generic font.

"A massive win for public health" ... Mike Daube. Photo: Supplied
Attorney-General Nicola Roxon and Health Minister Tanya Plibersek declared: "This is a victory for all those families who have lost someone to a tobacco related illness.

"No longer when a smoker pulls out a packet of cigarettes will that packet be a mobile billboard."

The ministers said plain packaging was a vital measure, "which removes the last way for big tobacco to promote its deadly products. Over the past two decades, more than 24 different studies have backed plain packaging, and now it will finally become a reality."

The High Court orders announced today do not include the reasons for its decision, which will be published at a later date.

But the order means that at least a majority of the court is of the opinion that the plain pack legislation is not contrary to Section 51(xxxi) of the constitution.

The High Court has awarded costs against the tobacco companies that are estimated to run into hundreds of thousands of dollars.

President of the Australian Council on Smoking and Health, Mike Daube, said the decision was "a massive win for public health".

"It is also the global tobacco industry's worst defeat," said Professor Daube, who chaired the federal government's expert committee that recommended plain packaging.

"The global tobacco companies have opposed plain packaging more ferociously than any other measure we have seen."

The companies knew that plain packaging would have a major impact on smoking in Australia - and that other countries would follow.

Professor Daube said the companies' own internal documents showed that packaging was a crucial part of their marketing.

"Since we learnt about the dangers of smoking, cigarettes have killed 1 million Australians, in large part because of the activities of the world's most lethal industry."

The tobacco companies had argued before the High Court that the government, through the plain packaging measure, would be depriving them of copyright.

During the hearings in April the companies - British American Tobacco, Philip Morris, Imperial Tobacco, Van Nelle Tabak Nederland and JT International SA - argued the measure breached the constitutional requirement that the acquisition of property by the government be on just terms.

But to make that case, the companies had to show that the government gained a measurable benefit as a consequence, which is apart from the claimed benefits to population health.

The Commonwealth responded that the companies' case could not succeed unless it could be shown that the government had taken property from them.

British American Tobacco Australia said today it was "extremely disappointed" the High Court had upheld what the company said was "a bad piece of law".

"At the end of the day no one wins from plain packaging except the criminals who sell illegal cigarettes around Australia," the company's spokesman, Scott McIntyre, said.

But the company would comply with the law even though it still believed "the government had no right to remove a legal company's intellectual property", Mr McIntyre said.

However, legal expert Jonathan Liberman rejected the company claim that the only winners were the traffickers of illegal cigarettes.

"The only winners are everybody in the world other than the tobacco industry," said Mr Liberman, the director of the McCabe Centre for Law and Cancer in Melbourne.

Mr Liberman said it was also unlikely that the tobacco industry's other legal challenges against plain packaging, including with the World Trade Organisation, would succeed, because of the harm to health that tobacco represented.

In Washington, the American group Campaign for Tobacco-Free Kids, said the court had delivered "a tremendous victory for health".

"We applaud the Australian government for standing up to the bullying of the tobacco industry and taking strong and innovative action to reduce tobacco use, the world's number one cause of preventable death".

The chief executive of the Public Health Association of Australia, Michael Moore said tobacco companies had used every possible trick and mechanism to oppose plain packaging.

The measure "will help prevent children from starting to smoke and encourage adults to quit," Mr Moore said.

"We can take immense heart from knowing that even the massive resources of a global industry cannot buy government policy or High Court decisions."

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