Push for plain cigarette packaging reaches new heights

By Dr. Ananya Mandal, MDApr 18 2012

Labor’s plain packaging laws for cigarettes allow the commonwealth to advertise a political message without paying for the privilege and acquire the property of tobacco companies, the High Court has been told.

According to Big tobacco yesterday, Labor's plain packaging legislation was unconstitutional because it amounted to an acquisition of property without “just terms” under section 51 of the Constitution. British American Tobacco, Japan Tobacco International, Philip Morris and Imperial Tobacco told the Full Bench of the High Court the plan would benefit the Commonwealth by giving it control over the content displayed on the packets.

Under the federal government's laws all cigarettes and tobacco products will have to be sold in drab olive-brown packs from December. Large graphic health warnings will dominate the packs, and the manufacturers' brand names - such as Camel or Winfield Blue - will be written in a small generic font.

Alan Archibald QC, barrister for Philip Morris, said the plan effectively “conscripts the packet to service (the Commonwealth's) purposes”. Gavan Griffith QC, for Japan Tobacco, which sells Camels said the packs could be used as billboards and Canberra could just as easily promote its own messages including “pay your tax on time” or “drive safely”. “What the commonwealth has done is to prescribe the message that the commonwealth desires to have put on that billboard,” he said. “It's acquiring our billboard, in effect.” Imperial Tobacco's senior counsel, Bret Walker, said the cigarette companies were like a frog that realized it was about to be cooked.

However, the court also heard the Commonwealth could only be said to have unlawfully acquired big tobacco's property if it benefited in some way. Many of the High Court justices on Tuesday questioned how that could possibly be the case. “The Commonwealth doesn't have the right to use your trademark as a result of this legislation,” Chief Justice Robert French said.

Justice Kenneth Hayne repeatedly asked how the commonwealth would benefit by forcing manufacturers to run large health warnings on the front and back of the plain packs. The tobacco companies responded by arguing the government wasn't paying for the space. Neither was Quitline, whose stop-smoking helpline number will appear on the packs.

Justice Susan Kiefel wanted to know why it couldn't be said the Commonwealth was simply involved in a “considerable restriction” of the manufacturers' trademarks without itself benefiting. “The loss of something may not equate to the commonwealth's acquisition,” she said.

Federal Attorney-General Nicola Roxon spoke to reporters outside the court before the three-day hearing began. “Regulating the way tobacco is sold in Australia is something that is lawful for any parliament and any government to do,” she said. “Over many decades we've taken steps to introduce tobacco-control measures and this is the next step.”

The case is the first such in the world, and will be closely watched by other governments across the world who are considering similar plans. The hearing is expected to run until Thursday with a judgment due by mid-year.