Yesterday saw the US Chamber of Commerce, the TransAtlantic Business Dialogue, the Emergency Committee for American Trade, the National Association of Manufacturers, the United States Council for International Business and the National Foreign Trade Council warn of the threat to intellectual property if the British government decides to mandate ‘plain packaging’ for cigarettes. They join the European Communities Trade Mark Association, the British Brands Group and the International Trademark Association in voicing their concerns about a policy that would involve the wholesale confiscation of a product’s packaging by the state. The British Brands Group, for example, has told the Department of Health that plain packaging would be ‘contrary to the harmonised EU and international system of trade mark protection with which it is obliged to comply.’
The business community is right to be worried. As the American groups said in their statement yesterday, ‘The rule of law and legal certainty are not just very important for the business community. They are vital to ensuring innovation is encouraged and rewarded and meaningful jobs are created.’ If the matter is settled in court, as seems certain now that the Australian government has passed a plain packaging law, a victory for the anti-smokers would set a legal precedent which would effectively allow bureaucrats to seize the entirety of the packaging of any product which carries a risk to health. As if to underline this threat to the free market, today sees the start of the Commons Select Committee hearings on the government’s alcohol strategy. Although it has gone unnoticed by most of the media, ‘plain packaging and marketing bans’ is listed on the agenda.
Anti-smoking groups will be irritated to see the government move from plain packaging of cigarettes to plain packaging of alcohol with such indecent haste. They have long insisted, against all evidence, that there is no ‘slippery slope’ that leads from tobacco regulation to that of food and drink. The government will surely pull back from outlawing booze brands for the time being and instead focus on minimum pricing, but here, too, there are legal obstacles. European Council Directive 95/59/EC asserts the right of manufacturers and importers to set retail prices and the European Commission has successfully contested attempts by member states to set minimum prices in the past.
None of this guarantees that minimum pricing and plain packaging will never be introduced. The English and Scottish governments may lobby the European Commission for a change to the law, and the courts may decide that tobacco is a special case when it comes to trademarks and intellectual property. There is an expensive and torturous legal road ahead and, despite all the warnings from business groups, politicians may decide to cut a great road through the law to get after the Devil, to quote the famous line from A Man for All Seasons. This is uncharted territory, but it is sobering to note that it is the Conservative party - the erstwhile party of the free market - that is pushing the boundaries of what is acceptable under international trade law in 2012.