In a recent decision, the British government has dealt a blow to the IP rights of tobacco companies, requiring all cigarettes to be sold in plain packages regardless of brand. This duplicates a law and ban on cigarette branding that was passed in 2012 in Australia. All cigarettes are now sold in the same green packaging.
Regardless of how one views the habit of smoking cigarettes, the ban on cigarette branding is a good example of how a government can unilaterally prevent brand use for the sale of harmful products, resulting in direct and legal infringement of the IP rights of the companies concerned. Tobacco companies have actively lobbied against this law on the basis that it does infringe on their IP rights. Tobacco producing countries are opposing the Australian ban on cigarette branding before the World Trade Organization, and they are sure to do the same with the new UK law. The fear is that a ban on cigarette branding will decrease worldwide tobacco consumption and production, though that seems unlikely in the short term at least; the Australian law caused about a 3% drop in that country in the year following passage.
Ban on cigarette branding – Acting in the Public Interest
Governments do have the authority to pass laws that protect the public interest, and the chief justification for a move like this is to prevent the increase in the number of children who smoke. Young people can be susceptible to ad campaigns that extol the virtues of smoking, and so there may be sound moral ground for the actions of the UK government. The open question is whether this type of action is limited to tobacco products, or if it could be used as a precedent to limit brand use for other types of products and consumer goods.
From a strictly legal standpoint, it is interesting to view this decision in light of other products that have the potential to cause harm. For example, this type of law could extend to video games that promote violence or warfare, alcohol use and other substances that can be abused or overused to the detriment of young people. It is not difficult to see this type of decision being used to justify further erosion of IP rights of companies who do not expect to be prevented from actively marketing or promoting their products. Whatever the future direction, it appears that the debate over the ban on cigarette branding is far from over.
