Since late 2012, legislation introduced by the Australian Government has required the sale of cigarettes and other tobacco products in Australia in drab plain packaging, where brand names are restricted to small, generic type. The packaging has included large health warnings, and disturbing graphics depicting the ill health effects of smokingas deterrents. This seems to have been effective as the recent publication of the National Drugs Strategy Household Survey has shown a decline in tobacco consumption subsequent to the introduction of the legislation.
Around the time that the plain packaging legislation was introduced, social media came alive with discussions on how plain packaging might spread toother industries, particularly the alcohol industry.
Fast forward to 2014, and at least one state in Australia has taken initial steps that may eventually lead to plain packaging laws for alcohol products. Specifically, the Alcoholic Beverages Advertising Prohibition Bill 2012 seeks to place strict prohibitions on the advertising of alcohol in New South Wales, with restrictions also placed on sponsorships, competitions and free samples involving alcoholic products.
Under the Bill, ‘alcohol advertisement’ means:
“… writing, still or moving picture, sign, symbol or other visual image or message or audible message, or a combination of two or more of them, that gives publicity to or otherwise promotes or is intended to promote:
(a) the purchase or use of an alcoholic beverage, or
(b) the trade mark or brand name, or part of a trade mark or brand name, of an alcoholic beverage”.
However, an advertisement (presumably including a display of trade marks and/or other indicia) appearing inside a shop or other retail outlet where alcoholic beverages are offered or exposed for sale is not considered an offence.
The second reading speech in respect of this Private Member’s Bill was recently presented and debate was to resume towards the end of June 2014.
Looking overseas, the Indonesian Government may perhaps go one step further as it mulls over the introduction of new regulations that would require manufacturers to use plain packaging and/or place graphic warnings on packaging in a bid to lower the number of alcoholic beverage consumers.
Given that Indonesia is considered a Muslim country, the consumption of alcohol by locals is generally low. Nevertheless, introduction of plain packaging regulations could damage Australia’s small but significant export of wine to Indonesia which amounts to $2.4 million (0.1 per cent of a total $2 billion in wine exports per annum). What is perhaps a more significant issue is the production of ‘bootleg’ spirits that regularly result in poisoning and death in both locals and foreign tourists. Plain packaging regulations are unlikely to impact the sale of ‘black-market’ spirits in Indonesia.
Paradoxically, this announcement by the Indonesian Government appears inconsistent with its approach in relation to plain packaged tobacco products. As Watermark recently reported, a number of tobacco producing countries, including Indonesia, have taken action at the WTO asserting that the plain packaging legislation breaches Australia’s international obligations in respect of trade mark protection.
If anything, these issues highlight the tensions between what might be viewed as ‘ethically correct’ action by Governments and a right to exploit IP to derive commercial value.