Plain packaging valid because brand names not acquired by government

Lighted Up Cigarette

Australia’s regulation demanding that cigarettes be marketed in ‘plain packaging’ is constitutionally valid since it does not obtain property, the High Court has defined.

As outlined by an Australian Associated Press story, the court on October 5 released its motives for ruling in mid-August that plain packaging was constitutionally valid.

Although the Tobacco Plain Packaging act controlled the plaintiffs’ intellectual property rights and charged controls on the packaging and display of tobacco products, it did not confer a private profit on the commonwealth,’ said a summary of the judgment published by the court.
It was as well said that the act was valid because it did not acquire property.
Dyson Heydon, the sole dissenting judge in what was a 6 to 1 ruling, criticized the government’s ‘hatred’ of Section 51 (xxxi) of the constitution, which demands it to pay for property it purchases.

Tobacco companies such as British American Tobacco Australia (BATA), Japan Tobacco International, Philip Morris and Imperial Tobacco Australia will have to give the commonwealth’s legal costs, which ran into millions of dollars, according to Attorney-General, Nicola Roxon.

The law indicates that beginning with December 1 all tobacco products will have to be purchased in olive-colored packs developed on the part of the government to appear as unappealing as is possible.

On October 5 BATA supported the government’s policy was flawed. Spokesman, Scott McIntyre, said that in spite of the causes for the High Court’s decision, the plain packaging necessity was a negative part of law that would have significant unintended effects.

At the same time, The World Trade Organization’s Dispute Settlement Body has decided to set up a panel to analyze Australia’s plain packaging demands.

In its demand for the establishment of a panel, Ukraine said that Australia’s actions ‘erode the safety of intellectual property rights’ and ‘ set strict prohibitions on the use of validly authorized trademarks’.

It is said as well in a Ukrainian statement that ‘Ukraine thinks that governments should follow legitimate health policies through efficient actions without unnecessarily limiting international trade and without nullifying intellectual property rights as assured by international trade and investment rules’.

Ukraine believes that the actions ‘are obviously more restricted than need to gain the stated health goals’ and thus break the Agreement on Technical Barriers to Trade as an ‘unnecessary obstacle to trade’.


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