426. The representative of Australia said that her delegation welcomed the interest of other Members in its proposed legislation on the plain packaging of tobacco products and the support received for these important measures. Since the last meeting of the TRIPS Council in June 2011, the Tobacco Plain Packaging Bill 2011 and the associated Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 had been introduced into the Australian Parliament on 6 July 2011. Both Bills had passed the House of Representatives on 24 August 2011 with no amendments and were expected to be considered by the Senate before the end of 2011. She said that Australia's Minister for Health and Ageing, Nicola Roxon, had issued a media release on 12 October 2011, indicating that as a result of the delays in passing the Bill, the Government was now reconsidering implementation timelines in the context of which representations from industry about the timelines were also being considered.
427. She said that in recent months her delegation had met with all WTO delegations that had raised this issue in previous TRIPS Council and TBT Committee meetings to explain the purpose and details of the proposed measures and to provide detailed information in relation to the questions raised.
428. With regard to the purpose of the measures, her delegation had outlined at the previous meeting of the Council that Australia was implementing this legislation in the interests of promoting public health and in particular in the area of reducing tobacco consumption. She said that three million Australians still smoked, and 15,000 of them died every year causing a staggering bill of $A36 billion to the Australian tax payer. In that context, her delegation was confident that, as part of a comprehensive package of tobacco reforms, the bill would make an effective contribution to reducing smoking, and thereby reduce the health impact of smoking on Australian individuals and the community at large. Tobacco packaging was one of the last remaining forms of tobacco advertising in Australia and the plain packaging legislation was therefore the next logical step in Australia's tobacco control efforts.
429. She said that the effect of the legislation would be that tobacco company branding, logos, symbols and other images that might have the effect of advertising or promoting the use of the tobacco product would not be able to appear on tobacco products or their packaging. The brand name and variant name would continue to be allowed on packaging, as would be information required by other legislation or regulations, such as trade descriptions and graphic health warnings.
430. The plain packaging of tobacco products was designed to reduce the attractiveness and appeal of tobacco products to consumers, particularly young people; to increase the noticeability and effectiveness of mandated health warnings; to reduce the ability of the tobacco product and its packaging to mislead consumers about the harms of smoking; and, through the achievement of these aims in the long term, as part of a comprehensive suite of tobacco control measures, contribute to efforts to reduce smoking rates. She said that plain packaging needed to be considered in the context of Australia's long term efforts on tobacco control. Over the past 30 years Australia had implemented a number of measures to reduce smoking rates, including extensive and continuing public education campaigns on the dangers of smoking; age restrictions on tobacco purchase; pricing measures through excise and customs duties; comprehensive bans on tobacco advertising, promotion and sponsorship; bans on smoking in certain places to reduce the impact of second hand smoking; bans and restrictions on the retail display of tobacco products; mandatory graphic health warnings on tobacco product packaging; and 'quit smoking' support services including free counselling and subsidised pharmaceutical products.
431. Guidelines agreed by the Conference of the Parties to the WHO Framework Convention on Tobacco Control (FCTC) in 2008 for the implementation of Articles 11 and 13 of the FCTC recommended that Parties consider the introduction of plain packaging. The proposed legislation was consistent with recommendations made to the Government by Australia's National Preventative Health Taskforce which had been based on extensive research evidence that explored the impacts of tobacco packaging and tested the reactions of respondents exposed to different packaging options under experimental conditions. The weight of the evidence indicated that a plain packaging requirement, as part of a comprehensive suite of tobacco control measures, would help to reduce smoking rates. Her delegation wished to urge Members to examine carefully any so-called evidence to the contrary which was funded by the tobacco industry. She said that her delegation had been responsive to comments from trading partners and other stakeholders, and that Australia remained fully committed to its international obligations to protect IPRs, including the rights of trademark owners.
432. Her delegation had notified the measures to the WTO on 8 April 2011. As noted by Ukraine in its intervention, the Australian Government had undertaken extensive public consultation on the proposed legislation. Prior to the introduction into Parliament of the Bills, the Australian Government had also consulted widely with trading partners, including tobacco exporting developing countries, through a series of outreach meetings to explain the proposed measures. These comments were taken into account and had led to changes to the Bill and draft regulations where the changes were in line with the Government's policy objectives. This included responding to concerns about the protection of the rights of trademark owners, with changes made to ensure their effective operation.
433. Amendments to the Tobacco Plain Packaging Bill had been proposed to ensure the trademark owners' ability to protect their trademarks from use by other persons, and the ability to register and maintain the registration of a trademark had been preserved. A parallel Trade Marks Amendment Bill had been introduced to allow the Government to strengthen those protections should uncertainty arise. The import offences for non-compliant tobacco products had also been removed from the bill in response to submissions received and public consultations. This change allowed tobacco products to be imported into Australia in non-compliant retail packaging, and then repackaged for retail sale in Australia. She said that the bill required compliance with plain packaging requirements from the first on-sale (whether wholesale or retail) of imported products in the supply chain in Australia.
434. She said that her delegation did not accept claims that Australia's plain packaging proposal would have a significant impact on illicit trade in tobacco products. Trade in illicit tobacco in Australia was low and her delegation did not expect this to change as a result of these measures. It was important to understand that counterfeiters now seemed to have little trouble replicating branded tobacco packages and it was worth repeating that smoking of any tobacco product, whether licit or illicit, was fundamentally harmful to human health. Nevertheless, given concerns were expressed about counterfeiting and illicit trade in tobacco products, allowances had been made to ensure that protective markings could be used for anti-counterfeiting purposes. These included the use of unique alphanumeric code markings on each pack and cigarette stick, and covert markings in compliance with other aspects of the Bills.
435. With respect to the applicability of the measure to other products she said that the proposed plain packaging legislation related only to tobacco products and retail packaging of those products and the Australian Government did not consider extending the measure to other products.
436. According to the World Health Organization, "tobacco is the only legal consumer product that kills up to half of those who use it as intended and recommended by the manufacturer." She said that tobacco products cause extraordinary harm and require appropriate measures. At the same time, she said that Australia was fully committed to its international obligations to protect IPRs, including the rights of trademark owners. She said that, in framing its policy on plain packaging, Australia had paid full regard to its obligations under the TRIPS Agreement and would ensure that the new policy was implemented in a manner that consistent with that Agreement.
