407. The representative of Zimbabwe said that his delegation associated itself with the statements of Ukraine, Cuba, the Dominican Republic, Nicaragua, Honduras, Nigeria and Mexico. He said that, although this controversial Plain Packaging Bill 2011 was meant to protect health, it would not be in keeping with Article 2.2 of the TBT Agreement which stated that "technical regulations shall not be more trade restrictive than necessary to fulfil a legitimate objective, taking account of the risks non fulfilment would create" and that "in assessing such risks, relevant elements of consideration are, inter alia, scientific evidence and technical information, related processing technology or intended end-use of products".
408. He said that the TBT Agreement further required all "technical regulations" to be "no more trade restrictive than necessary" to pursue a legitimate objective. As there was no evidence that plain packaging influenced consumer behaviour, imposing this new technical regulation would restrict trade without doing anything to achieve a legitimate objective, and therefore create unnecessary obstacles to international trade. It would also be in violation of Article 12.3 of the TBT Agreement which required Members to ensure that their technical regulations "do not create unnecessary obstacles to exports from developing country Members".
409. Furthermore, he said, plain packaging could not be justified under the TRIPS Agreement. Plain packaging had to be seen as an unjustifiable encumbrance under Article 20. Article 8.1 of the TRIPS Agreement stated that any measure adopted to protect public health must be consistent with the provisions of the TRIPS Agreement, which plain packaging was not. Article 17 further stated that only limited exceptions to the rights under the TRIPS Agreement were permissible and that the legitimate interests of trademark owners always had to be taken into account. By completely prohibiting the use of some marks and strictly mandating the form of use for others, plain packaging could not be considered a "limited" exception and did not even attempt to consider the rights of trademark owners in its "one size should fit all" approach.
410. He said that Zimbabwe, as one of the major tobacco producers, would be adversely affected by the proposed bill as it would negatively affect its trade, and the social impact on thousands of people whose livelihoods depended on the production of tobacco products would be severe. His delegation once again urged the Australian Government to realign its proposed Bill to conform to the relevant articles of the TRIPS Agreement.
