A plain message to smokers

Commission considers plain cigarette packs.

John Dalli, the European commissioner for health, is the tobacco companies’ worst nightmare: a former smoker, now reformed. With the zeal of a repentant sinner, Dalli has insisted that this year’s revision of EU rules on tobacco products will be a hard-hitting reform. 

Speaking at the European Parliament in February, Dalli showed images of cigarette packs in different colours and shapes. “Cigarette packages are increasingly used as marketing tools, and slim, colourful, attractive packages are available on the market,” he said. “Tobacco packages should look dissuasive, not appealing. When people look at a package of cigarettes, they need to get the message that this product can harm their health.”

EU law already requires that cigarette packets carry health warnings. The European Commission is likely to use the revision of the tobacco products directive to demand large pictorial warnings on packs, something that is already required in ten member states.

But the Commission is considering going even further, requiring all cigarette packs in the EU to have identical plain packaging, with the brand printed at the bottom of the pack in small print. The rest of the pack would be devoted to the pictorial warning about the adverse health effects of smoking. Such legislation was adopted last year in Australia and will take effect in December.

The tobacco industry is fighting back with two principal arguments: that such changes would amount to the repression of intellectual property rights, and that it would make cigarette counterfeiting easier.

Field day for fakes?

A report published this month by the Milan-based Joint Research Centre on Transnational Crime (Transcrime) concluded that plain packaging for cigarettes would be easier to counterfeit. It warned that the Commission does not give sufficient attention to this risk in its impact assessment on the proposed legislation.

“Contrary to their own guidelines, European policymakers rarely consider the crime-risk implications when drafting new legislation and the revision of the tobacco products directive seems to confirm this,” said Ernesto Savona, the author of the report.

The Commission estimates that member states lose €10 billion in tax revenue every year as a result of illegal trade in cigarettes. In October 2011, 1.2 million counterfeit cigarettes were seized at Poland’s border in an operation involving OLAF, the EU’s anti-fraud office,

But health campaigners say the study, which was funded by cigarette company Philip Morris, fails to prove any link between packet design and counterfeiting.

Health campaigners such as Florence Berteletti Kemp, the director of the Smoke-Free Partnership, say that the pictorial warnings are as intricate as the logos and could also be used to identify counterfeits. “If the tobacco companies really want to combat counterfeiting and the illegal trade in tobacco products, why is it that they never talk about the only solutions available, which are to enforce customs control and introduce anti-counterfeiting and traceability technology?” she said.

When the Commission launched a consultation on revision of the tobacco products directive last year, it received a record number of citizen responses – 87,000. The majority wanted no change to the directive. About half of member states indicated they are not opposed the introduction of plain packaging. Several member states said that the measure should be considered, including Austria, Belgium, France, Spain and the UK (where the government is considering introducing such requirements at a national level). But Denmark, Greece, Italy, the Netherlands and Sweden were opposed to such a move.

Branding up in smoke

The tobacco industry also argues that plain packaging would make worthless their logos and branding, in which they have invested millions of dollars.

Philip Morris is challenging the Australian law on the grounds that it violates the World Trade Organization’s TRIPS (trade-related aspects of intellectual property rights) agreement, which stipulates that “the use of a trademark in the course of trade shall not be unjustifiably encumbered by special requirements”. Philip Morris will make this same challenge if the EU enacts a similar law.

But Celine Brassart, a legal consultant in tobacco control, says the TRIPS agreement was only intended to protect intellectual property from unauthorised use, and was not supposed to guarantee the freedom to use it. “The TRIPS agreement and the EU directive on trademarks do not confer a positive right of a trademark owner to use that trademark,” she said. “The TRIPS agreement allows the restriction of the use of trademarks for public health purposes, without affecting the ownership rights of the trademark owner.”

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Some tobacco companies are concerned that if consumers are no longer able to differentiate between brands they will gravitate toward the cheapest cigarettes. Another recent study conducted for Philip Morris supported this. Last year, retail associates from 11 countries signed a declaration against plain packaging. They say that there is no evidence that the health benefits of plain packaging would outweigh the costs.

A study by Cancer Research UK concluded that plain packaging would make smoking so much less attractive that it could halve tobacco sales. Studies carried out in Belgium and France have come to similar conclusions, saying that plain packs would have a particularly dissuasive effect on young people. But the tobacco industry says these are based mostly on people’s statements of intention rather than action.

The Commission will not put forward its detailed proposal to revise the directive until the autumn. In the meantime, lobbying seems certain to become more frenetic. The Commission can expect to see more studies on the legal, economic and criminal impacts of plain packaging. The Commission is also considering new limits on cigarette ingredients, banning the public display of cigarettes, and bringing new electronic cigarettes into the directive.