Tobacco Plain Packaging: A Judge’s View from Germany
“My prediction is that tobacco plain packaging will arrive in Germany only when the European Union prescribes it for the whole Union. I don’t think the German government will do anything that it doesn’t have to do,” says Ralf Neugebauer, a Judge at the Düsseldorf Higher Regional Court (Germany).
Judge Neugebauer—an IP specialist who sits on a panel with two other judges at the appeals court—explains that tobacco plain packaging legislation is not mandatory for EU member states. In 2014, the European Union did adopt Directive 2014/40/EU, which places restrictions on the manufacture, presentation, and sale of tobacco and related products, but it does not require tobacco products to be placed in plain packets.
Only a handful of member states have implemented plain packaging provisions in their national legislation, including the United Kingdom and France. In 2012, Australia became the first country in the world to introduce such laws, sparking intense discussions about the legality and effectiveness of plain packaging. Germany has yet to follow suit, despite having implemented Directive 2014/40/EU provisions on health warnings, which appear on the front, back, and sides of tobacco packets.
Asked why his home nation has chosen to steer clear of plain packaging laws, Judge Neugebauer, who handles approximately 200 cases on trademarks, designs, copyright and unfair competition every year, says he assumes the German government thinks the measures provided by the Directive are sufficient for protecting health. “As far as I know, there is no law in the making,” he says. He admits, however, that “you can’t rule it out—sometimes politics takes an unpredictable path.”
While Germany has chosen not to require plain packaging, the overall tobacco advertising regime in the country is about to become stricter. Beginning in 2020, all tobacco advertising will be banned. Such advertising is already banned on media, including TV, radio, print, and the Internet, so the restrictions kicking in in 2020 will apply to advertisements appearing in other areas, including the cinema and on street placards.
