Plain packaging in Australia: Not necessarily compatible with TRIPs

摘要

In light of the Australian Government's announcement that legislation mandating plain packaging of tobacco products will be implemented in 2012, the tobacco industry has demonstrated its intention to fiercely defend its use of trademarks on tobacco packaging. This article begins by assessing the Bill released in 2011 and examining its effect on manufacturers and consumers of tobacco products in the context of the suite of reforms implemented to reduce smoking. It then examines the compatibility of the legislation with several provisions of the TRIPs Agreement and considers more specifically the scope of Art 20 and whether plain packaging is justified for the protection of public health. The article argues that plain packaging measures should be found incompatible with TRIPs, particularly in the context of the Australian legislation, and that alternative measures should be taken to reduce smoking. Finally, however, it concludes that the conflicting evidence as to the efficacy of plain packaging, as well as Australia's position as the first nation to implement the measure, may not result in a finding of incompatibility with TRIPs.