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Evans, Simon; Bosland, Jason --- "Plain Packaging of Cigarettes and Constitutional Property Rights" [2012] ELECD 809; in Voon, Tania; Mitchell, D. Andrew; Liberman, Jonathan; Ayres, Glyn (eds), "Public Health and Plain Packaging of Cigarettes" (Edward Elgar Publishing, 2012)

Book Title: Public Health and Plain Packaging of Cigarettes

Editor(s): Voon, Tania; Mitchell, D. Andrew; Liberman, Jonathan; Ayres, Glyn

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9780857939425

Section: Chapter 4

Section Title: Plain Packaging of Cigarettes and Constitutional Property Rights

Author(s): Evans, Simon; Bosland, Jason

Number of pages: 33

Extract:

4. Plain packaging of cigarettes and
constitutional property rights
Simon Evans and Jason Bosland*

I. INTRODUCTION

Australia is the first country in the world to take steps to require that
tobacco products be sold in plain packaging.1 On 6 July 2011, the govern-
ment introduced the Tobacco Plain Packaging Bill 2011 (`the Bill' or `the
plain packaging legislation') into the House of Representatives, with the
intention that it be passed during the Winter 2011 Parliamentary sitting
and in force by 1 January 2012. If passed, the Bill will allow regulations
to be made to prevent tobacco manufacturers applying their trademarks
to the packaging of tobacco products manufactured or sold in Australia,
with the exception that brand and product names could be used in a pre-
scribed font and within a specified place on the packaging. Importantly,
such products will not be able to be labelled using device trademarks or
word trademarks in a stylised font or script. In addition, the packaging
must be in a plain colour (`drab dark brown')2 without any other deco-
ration. Under the proposed measure, plain packaging will only apply to
material likely to be encountered by the retail customer and, therefore, will
not apply to wholesale or shipping packaging.
The tobacco companies view the government's proposal as an interfer-
ence with their trademark rights (as well as potentially other intellectual
property rights) and have suggested that it is unlawful on two separate
bases. First, they have raised the possibility that the measure ...