167. The representative of Australia said that her delegation welcomed the continued interest of other Members in its initiative to require the plain packaging of tobacco products. She thanked Members for their questions and the support Australia had received for these important measures and wished to provide an update on the status of the legislation and its implementation.
168. She said that Australia had addressed the various issues raised by Members in relation to its Tobacco Plain Packaging legislation at previous Council meetings and had comprehensively responded to all the claims made by the Dominican Republic and others. In order not to repeat those responses today, her delegation requested that Australia's previous interventions on its Tobacco Plain Packaging Bill, as recorded in previous minutes be included in the record.
169. Since this Council last met in October 2011, the Tobacco Plain Packaging Act 2011 and the Trade Marks Amendment (Tobacco Plain Packaging) Act 2011 had been passed by the Australian Parliament and had received Royal Assent on 1 December 2011. The Tobacco Plain Packaging Bill 2011 had passed the Australian Parliament on 21 November 2011, which included amendments to (i) extend the implementation timeframes and provide an additional two weeks for retailers to sell through ('flush-through') any product in non-compliant packaging before the retail offences commence; and (ii) address a technical implementation issue identified by tobacco companies to permit rounded corners to be used on the inside lip of cigarette packs. The associated Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 had passed the Parliament on 10 November 2011.
170. She said that all tobacco products manufactured or packaged in Australia would now be required to be in plain packaging by 1 October 2012 (previously 20 May 2012). All tobacco products would now be required to be sold in plain packaging by 1 December 2012 (previously 1 July 2012). The final regulations as they related to cigarette products, which contained the specific details on how the plain packaging requirements were to be implemented, had been approved on 7 December 2011 and were publicly available. These regulations had been revised in response to comments from the industry on previous drafts.
171. She said that regarding non-cigarette tobacco products - including cigars, loose-leaf tobacco and bidis - the Government had issued a consultation paper on 30 September 2011 for public comment. Consultations had closed on 28 October 2011, with 33 submissions received. The Government had released draft regulations incorporating the specifications for plain packaging of non-cigarette tobacco products on 23 December 2011, for a public consultation period which ended on 20 January 2012.
172. The Government had revised the draft regulations in response to comments and was currently considering responses to the most recent consultation in finalising the Amendment Regulation, and planned to seek approval of the Amendment Regulation in the coming weeks.
173. She said that, as had been outlined at the previous meeting of the Council, her delegation was implementing this legislation in the interests of promoting public health. Her delegation was confident that, as part of a comprehensive package of tobacco reforms, it would make an effective contribution to reducing smoking, and thereby reduce the health impacts of smoking on Australian individuals and the community at large.
174. Australia was and would continue to be fully committed to its international obligations to protect IPRs, including the rights of trade mark owners. 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 consistent with that Agreement.
175. She said that plain packaging was a legitimate measure designed to achieve a fundamental objective – the protection of public health. It was based on a broad range of studies and reports, and was supported by leading Australian and international public health experts. Australia had been responsive to comments from trading partners and other stakeholders. Prior to the introduction into Parliament of the Bills, the Australian Government had consulted widely with trading partners, including through a series of outreach meetings to explain the proposed measures. These comments had been 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.
176. She said that amendments to the Tobacco Plain Packaging Bill had been proposed to ensure 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 and passed to allow the Government to strengthen those protections should any uncertainty arise.
177. Australia had also removed import offences for non-compliant tobacco products, in response to submissions received in public consultations. This change would allow tobacco products to be imported into Australia in non-compliant retail packaging, and then repackaged for retail sale in Australia. 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. Australia had further adjusted the measures to allow a greater timeframe for implementation and to address a technical concern raised by industry to avoid retooling of machinery.
178. In closing, her delegation wished to reiterate that Australia's Plain Packaging legislation was a legitimate and appropriate measure which would make a significant contribution to protecting the health of Australians.
179. As requested, the statement her delegation made at the Council's meeting in June 2011 is reproduced below1.
"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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
180. In addition, the representative of Australia requested that the statement made in the June 2011 meeting be included.2
"The representative of Australia said that her delegation welcomed the opportunity to discuss this extremely important public health issue in the TRIPS Council and to explain the health policy underpinnings of the Australian Government's proposal. In order to provide some context for Members, she said it was worth noting that some 3 million Australians continued to smoke daily, that smoking killed over 15,000 Australians per year and that the cost to Australia's society and economy was over $31.5 billion per annum. This was the policy context in which the Australian Government approached this issue.
She said that, on 7 April 2011, the Australian Minister for Health and Ageing had released for public comment the Consultation Paper and draft legislation to mandate the plain packaging of tobacco products. The consultation period had closed on 6 June 2011. The comments lodged were currently being considered by the Australian Government. She said that Australia had been a global leader in tobacco control over the past 30 years and had implemented a comprehensive range of measures to reduce smoking rates. These included extensive and continuing public education campaigns on the dangers of smoking; age restrictions on tobacco purchase; comprehensive bans on tobacco advertising, promotion and sponsorship; bans on smoking in workplaces and enclosed public places; bans on smoking in cars with children and increasingly in open air public places where children may be exposed to second hand smoke; bans and restrictions on the retail display of tobacco products; pricing measures through excise and customs duties; and mandatory graphic health warnings on tobacco product packaging.
She said that tobacco packaging was one of the last remaining forms of tobacco advertising in Australia and the plain packaging legislation was the next logical step in Australia's tobacco control efforts. 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 legislation proposed by Australia was expected to commence on 1 January 2012, and would require all tobacco products offered for retail sale on or after 1 July 2012 to be compliant. The proposed legislation was part of a comprehensive package of new reforms to combat smoking announced by the Australian Government in April 2010. Other elements of the package were a 25 per cent increase in tobacco excise - Australia's tobacco excise and excise-equivalent duty was already high by international standards and now amounted to A$8.40 on a packet of 25 cigarettes, and A$10.09 on a packet of 30; increased investment in anti-smoking social marketing campaigns; and legislation to bring restrictions on tobacco advertising on the Internet into line with restrictions in other media and at retail points of sale.
She said that these measures had been recommended by Australia's leading public health experts on the National Preventative Health Taskforce, and accepted by the Australian Government. The Taskforce had considered that plain packaging would improve public health by reducing the attractiveness and appeal of tobacco products to consumers; reducing the ability of tobacco packaging to mislead consumers about the harmful effects of smoking; increasing the noticeability and effectiveness of mandated health warnings.
She said that her delegation had noted the comments from the Dominican Republic referring to an alleged lack of scientific evidence to indicate that a plain packaging requirement would work. She observed, however, that there was a body of peer-reviewed literature on the public record indicating that a plain packaging requirement would contribute to Australia's objectives. All of that literature was available on the preventative health website, the details of which she would be happy to furnish to Members. Australia did not consider that the plain packaging proposal would have a significant impact on the illicit trade in tobacco products since already branded products were quickly and readily counterfeited. Nevertheless, she said that anti-counterfeiting markings would be allowed to be used on the packaging provided those markings were not linked to tobacco marketing or promotions and did not interfere with graphic health warnings. She said that the Australian Government considered that the smoking of any tobacco products, whether licit or illicit, was fundamentally harmful to human health.
She said that Australia was, and would continue to be, fully committed to its international obligations to protect IPRs, including the rights of trademark owners. She assured all Members that, in framing its policy on plain packaging, Australia had paid full regard to the TRIPS Agreement and would ensure that the new policy was implemented in a manner that was consistent with that Agreement."
