The Challenge to Tobacco Control Goes up in Smoke

We previously reported (here) on the initial decision by the World Trade Organisation (WTO) to uphold legislation in Australia which implemented mandatory plain packaging in relation to tobacco products, as well as the looming implementation of similar legislation in South Africa.

The initial decision of the WTO was published in June 2018. It was subsequently appealed by two WTO members, namely Honduras and Dominican Republic. Other members, including South Africa, merely reserved their rights. In early June 2020, the WTO dismissed the appeals and ended the challenge to Australia’s plain packaging legislation at the WTO. The legislation also survived challenges on a domestic front. There are no further challenges to this legislation before the WTO.

The decision is being marked as a global victory for public health. In dismissing the appeals, the Appellate Board of the WTO held that plain packaging:

• contributes to the objective of improving public health by reducing tobacco consumption and exposure to tobacco smoke;
• is no more trade-restrictive than necessary for achieving that public health objective; and
• does not unjustifiably encumber the use of trade marks in the course of trade and,  therefore, the trade mark restrictions arising from plain packaging are justified by their contribution to public health objectives.

The pending appeals constituted a block to the meeting of obligations in terms of the World Health Organisation’s Framework Convention on Tobacco Control (WHO FCTC). The dismissal of the appeal means that parties to the WHO FCTC may now implement packaging and labelling measures in relation to tobacco products and even undertake a ban or impose stringent restrictions on tobacco advertising, promotion, and sponsorship.

Indeed, in South Africa, the Minister of Health in commemoration of World No Tobacco Day this year, confirmed that the Department of Health was finalising the Draft Control of Tobacco Products and Electronic Delivery Systems Bill, 2018 (“the Tobacco Bill”). This announcement comes at a time when the sale of tobacco products is totally prohibited under South Africa’s COVID-19 regulations. These regulations have also been challenged in separate suits which seek to overturn the tobacco ban.

While the Tobacco Bill does not prohibit tobacco sale and consumption altogether, it does place severe restrictions on tobacco manufacturers, including the requirement for standardised packaging, which inherently conflicts with the exercise of trade mark rights.

The finalisation and implementation of the Tobacco Bill has seemingly been accelerated since the decision of the WTO and the implementation of South Africa’s lockdown and we may see plain packaged tobacco goods sooner rather than later.

We continue to watch this space for developments as there is no smoke without fire…or cigarettes.