Plain packaging of tobacco raises broader issues for consumers, government and business

ICC’s Business Action to Stop Counterfeiting and Piracy (BASCAP) group has cautioned the UK government to keep an open mind and consider the broader implications of imposing plain packaging regulations on tobacco products.

These include the risk of increasing counterfeiting and smuggling and creating a precedent for extreme restrictions of intellectual property (IP) rights and trademarks.

Ahead of a UK Government consultation on the marketing of tobacco products, BASCAP Director Jeffrey Hardy said that proposals to introduce plain packaging would have far-reaching impacts on the use of trademarks and other intellectual property in the UK and globally.

 “The ability of brand owners to market their product in unique and easily identifiable ways is a core element of society’s protection of IP rights,” Hardy said. “Removing one industry’s ability to use its IP rights opens the door to extend this to other industries and brand owners in the UK and around the world.”

 “Our members strongly support the protection of public health and we are not questioning the adverse consequences of long-term tobacco use or the government’s role in reducing tobacco use,” Hardy said. “However, there is no scientific evidence indicating that plain packaging will further the government’s health policy goals. Any government law that strips business of property rights and legitimate protections of trademarks and brands must at least be supported by research and hard data.”

Restricting trademarks and branding of products removes a critical element of accountability and responsibility that consumers depend on to make the best choices in the marketplace. According to BASCAP, it also increases counterfeiting and smuggling.

 “Once brand identification and design are removed and all packaging is made to look the same, it will be much easier to counterfeit a product – first a pack of cigarettes and later other products. It will reduce brand owners’ ability to take action against counterfeiting and will increase the burden on already overstretched public agencies as they try to keep illicit products away from consumers,” said Hardy.

“Moreover, plain packaging will open the door to smuggling of foreign brands from abroad.”

The worldwide trade in counterfeit and smuggled tobacco already is valued at several billions of Euros a year, and BASCAP is convinced that plain packaging will simply increase the size of the business opportunity for criminal networks.

“It will be impossible to prosecute manufacturers of counterfeit tobacco products for counterfeit practices because technically there will be no illegal act of counterfeiting in the absence of trademark,” Hardy said.