Australia’s Tobacco Plain Packaging Law: An Analysis of the TRIPS Article 20 Challenge at the WTO

Abstract

Australia’s Tobacco Plain Packaging Act 2011 (TPP) and corresponding regulations specify that tobacco products be packaged in a particular size box and be made of certain material.2 No trademark other than the brand’s name may be printed, and font, letter size, color, and other packaging aspects are specified with particularity.3 These measures recently withstood a contentious dispute settlement request submitted on multiple grounds by four World Trade Organization (WTO) Member countries.4 What does the WTO’s Panel Report in this case tell us about the extent to which a country can take measures to advance its public health initiatives without violating obligations under Article 20 of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS)? What is the legal test for deciding this? To what extent can WTO Members undertake broad policy initiatives with the objective of protecting public health? Could WTO Members carry out these initiatives even when the consequence is far-reaching diminishment of branding and economic value of other Members’ trademark rights? Could the WTO Panel’s findings in this case embolden countries to take similar action with other consumer products medically proven to cause harm? 2 See generally Tobacco Plain Packaging Act 2011 (Cth) (Austl.) [hereinafter TPP Act 2011]; WHO Framework Convention on Tobacco Control May 21, 2003, 2301 U.N.T.S. 166, available at http://whqlibdoc.who.int/publications/2003/9241591013.pdf (recognizing the health, social, economic and environmental consequences of tobacco consumption and exposure to tobacco smoke, WHO negotiated its first treaty in 2003 and garnered 168 Signatories); for clarity, I will use the abbreviation “TPP” to refer only to the Tobacco Plain Packaging Act 2011, and the term “TPP measures” to include both the Act and corresponding regulations, this phrasing is consistent with the WTO’s usage of these terms in Australia Trademark Panel Report. 3 TPP Act 2011, supra note 2, ch 2 pt II div 1 sub-div 18. 4 See generally Panel Report, Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WTO Doc. WT/DS435/R; WT/DS441/R; WT/DS458/R; WT/DS467/R (adopted June 28, 2018) [hereinafter Australia Trademarks Panel Report] (showing complainants are Honduras, the Dominican Republic, Cuba, and Indonesia, respectively).