By Kim Choe
Associate Health Minister Tariana Turia says the Australian government’s victory over tobacco companies in the High Court gives the New Zealand Government a greater sense of security as it looks to introduce similar measures here.
The Australian High Court’s landmark decision today allows the Australian government to force cigarette companies to sell their products in plain packaging.
Ms Turia says she has been following the Australian case with “huge interest”.
“We are extremely pleased that the decision now confirms that Australia’s plain packaging regime is justified and conforms with the Australian constitution,” she says.
“The High Court case has been seen as the first real test of the legal argument that plain packaging is a justified extension of long-running regulation of tobacco products in pursuit of public health goals.”
British American Tobacco, Japan Tobacco International, Philip Morris and Imperial Tobacco had argued plain packaging was unconstitutional because it took away their intellectual property rights without compensation.
But Australia’s highest court disagreed, although the reasons behind the judgment won’t be released until later this year.
British American Tobacco New Zealand (BATNZ) says the court decision should be “cold comfort” to the New Zealand Government.
“The Australian case was based on their constitution and obviously the legal position in New Zealand is very different,” says BATNZ spokesman Nick Booth. “We’ll continue exploring all of our options to defend our valuable intellectual property.”
Mr Booth says BATNZ remains strongly opposed to the New Zealand proposal, and points out that Canada has chosen not to implement a similar measure.
“The right of companies to use their intellectual property in the form of brands is an important commercial and legal principle recognised the world over,” says Mr Booth.
“The New Zealand Government needs to reject this unproven policy and not go out on a limb with Australia.”
The New Zealand Government is currently undertaking a consultation process with a view to introducing plain packaging.
But Prime Minister John Key has said enforcing such a policy would be no “slam-dunk”.
That’s because, like Australia, New Zealand could also face legal challenges from both tobacco companies and tobacco-producing countries.
Independent of today’s court decision, Australia is fighting one such complaint to the World Trade Organisation from Ukraine, Honduras and the Dominican Republic, who claim the laws unfairly restrict trade.
Tobacco companies have also signalled they could challenge plain packaging laws under bilateral trade agreements, and the proposed new Trans-Pacific Partnership Agreement.
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