The Australian High Court case centred on three key legal arguments:
- first, that items including trademarks, copyright, designs, patents, goodwill, physical products and packaging constitute property;
- secondly, that plain packaging legislation would see British American Tobacco stripped of any right to this property; and
- thirdly that a related benefit had been passed on to the Australian government as a result.
The decision of the Australian High Court was not accompanied by a full written judgement setting out the rationale for their decision. We understand this will be made available in the coming months.
We are extremely disappointed by the decision of the Australian High Court and remain convinced that the Tobacco Plain Packaging Act is not only a bad piece of law, but that it is one that will have many unintended consequences for years to come.
It is important to remember that the scope of the High Court proceedings was tightly focused on addressing whether plain packaging legislation is contrary to a very specific point in the Australian constitution. As such, today’s decision only concerns Australian constitutional law.
In addition, this decision is wholly separate from the various other investment and trade-related disputes which Australia is currently facing as a result of introducing the Tobacco Plain Packaging Act. These include Australia’s World Trade Organisation dispute with Honduras, Dominican Republic and Ukraine, and the claim Australia is facing for breaching its Bilateral Investment Treaty with Hong Kong.
We fully support any form of evidence-based regulation but there is no proof to suggest plain packaging of tobacco products will be effective in discouraging youth initiation or encouraging cessation by existing smokers.
In fact, plain packaging would only exacerbate an already significant illicit tobacco trafficking problem, and would have other significant adverse unintended consequences including driving down prices which would lead to increased smoking while reducing government tax revenue.
British American Tobacco will continue to take every action necessary to protect our valuable brands and our right to compete in global markets as a legitimate commercial business selling a legal product, based on the full legal use of our intellectual property rights.