Plain Packaging of Tobacco Products: The new Australian laws and the legal challenges to them
| Autor | Mark Davison |
| Páginas | 195-207 |
− 195 −
PLAIN PACKAGING OF TOBACCO PRODUCTS: THE NEW AUSTRALIAN LAWS AND THE ...
SIGNOS DISTINTIVOS
Plain Packaging of Tobacco Products: The new
Australian laws and the legal challenges to them
MARK DAVISON *
Summary: I. The legislation. II. The High Court challenge. III. The World Trade Organisation
(“WTO”) challenges. IV. TRIPS. V. The GATT. VI. The technical barriers to trade agreement. VII.
The Bilateral Investment Treaty. Conclusion.
In 2012, the first laws in the world mandating plain packaging of tobacco products
were implemented in Australia after the laws were passed by the Australian parliament in
2011. Three legal challenges have been launched in different fora against the new laws.
The first of those challenges which was based on the Australian Constitution has already
been dismissed by the High Court of Australia.1 Two other challenges are currently under
way. The second consists of a number of complaints made at the World Trade Organisa-
tion (WTO) by Ukraine, the Dominican Republic and Honduras pursuant to, primarily,
the TRIPS agreement but which are also based on the GATT and the Technical Barriers
to Trade Agreement (TBT).2 The third challenge is by Philip Morris Asia (PMA), a Hong
Kong company, pursuant to a bilateral investment treaty (BIT) between Australia and
Hong Kong under which individual investors from either country may initiate arbitration
proceedings relating to the BIT.3 This article explains the nature of the new laws, describes
the legal bases of the three legal challenges and provides some insights into the key issues
to be addressed during those challenges.
I. THE LEGISLATION
The Tobacco Plain Packaging Act of 2011 (Cth) (the ‘Act’) and the Tobacco Plain
Packaging Regulations of 2011(the ‘Regulations’), came into effect in 2012. In addition,
new standards were introduced for mandatory text and graphic warnings on tobacco pac-
* Mark Davison is Professor of the Faculty of Law at Monash University, Melbourne, and member of the
Australian goverment`s expert advisory group on plain packaging of tobacco.
1 JT International SA v Commonwealth of Australia [2012] HCA 43
2 Three disputes have been initiated in respect of Australian legislation for the plain packaging of tobacco
products. Australia — Certain Measures Concerning Trademarks and Other Plain Packaging Requirements
Applicable to Tobacco Products and Packaging DS 434 and see also DS 435 and DS 441.
3 Relevant documents relating to the dispute can be found at http://www.ag.gov.au/Internationallaw/Pages/
Investor-State-Arbitration---Tobacco-Plain-Packaging.aspx, viewed 20 August 2012.
Anuario Andino de Derechos Intelectuales.
Año IX - N.º 9. Lima, 2013
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