A Look at Brand Restrictions After the World Trade Organization Ruling

How did INTA approach the World Trade Organization (WTO) Reports of the Panel ruling in June 2018 that upheld Australia’s law on tobacco plain packaging?

We were looking for nuances in the decision that might be useful with regards to plain packaging legislation covering types of products. I think there were some such nuances. For example, the decision found that plain packaging is something that the WTO can review and is not left exclusively to states.

One question the panel had to address was whether plain packaging was an “encumbrance” under Article 20 of GATT/TRIPs - The Agreement on Trade-Related Aspects of Intellectual Property Rights [TRIPS negotiated during the Uruguay Round of the General Agreement on Tariffs and Trade (GATT)]. The Australian government felt it was not, but fortunately the WTO agreed with INTA that a government’s removal of trademarks and elements of trade dress entirely from packaging was an encumbrance. However, it then put forward a balancing test, and held that the Australian government had given sufficient reasons for implementing the legislation.

In an amicus curiae brief focusing on Article 20, [which INTA submitted to the WTO Appellate Body Secretariat on January 10, 2019], INTA subsequently argued that merely giving reasons for plain packaging restrictions is insufficient, and there should be strong supporting evidence that the restriction actually results in the health benefits claimed. That means quantitative as well as qualitative studies. As a matter of fact, we cannot find evidence that plain packaging has been effective; the studies available now actually indicate the opposite. There is also evidence that plain packaging increases trade in counterfeiting, which we have already seen in Europe.