The UK’s Supreme Court has refused permission for major tobacco companies to appeal against the final introduction of new packaging laws. Cigarettes may now only be sold in minimum packs of 20, not the 10 previously available and must be in a standard packaging.
Rules requiring tobacco to be packaged in drab, dark brown packs with no graphic branding came into effect in May 2016, with branded packs subsequently being phased out.
Tobacco companies went to the supreme court after the court of appeal last November rejected their attempt to prevent the introduction of mandatory plain packaging of cigarettes in the UK.
British American Tobacco, Imperial Brands, Japan Tobacco International (JTI) and Philip Morris International claimed that the law would infringe their human and intellectual property rights.
Similar changes affect rolling and pipe tobacco, with a minimum pack size of 30 grams. The companies were given a period of grace to phase out the old packaging — leading to a glut of packs of 10 and no 20s in the stores a couple of months ago. Final implementation will be on May 20.
The banning of 10 packs is intended to make it more difficult, because of the expense, for children to purchase cigarettes. Packs of 20 are around £10 ($12.50). Retailers are already banned from selling to under 18 year olds and part of the new laws also make it illegal for somebody to purchase on their behalf. Other parts of the regulations now require that there be no displays of tobacco at all, leading to the supermarkets and larger retailers (initially) installing plain shutters to conceal the stocks. To further reduce the appeal to children, flavored tobaccos are banned, with menthol cigarettes being banned from May 2020. The marketing effect on children of the previous ranges of packages can be seen in this video from Cancer Research UK, lobbying for the new law.
Naturally, the tobacco companies hate the restrictions on their ability to sell their products and have made intense efforts to subvert the new regulations. Their challenge started in Australia which introduced plain packaging in December 2012, accompanied by significant rises in tobacco taxes. Their worldwide campaign has even led to Japan Tabacco taking a stand at a recent food fair to frighten food manufacturers into believing that future plans could include “plain packaging” of things like sodas. (Hey, that’s not a bad idea to reduce the consumption of sugar, thanks big tobacco!). This was evident in the British American response to their initial loss in the High Court last year:
“The judgment, if left to stand, should also raise real concerns for many other legitimate businesses as it creates a worrying precedent whereby public policy concerns can ride roughshod over long established fundamental commercial rights.
Big tobacco is back using the disinformation tactics it first used against scientists showing the causal link between smoking and lung cancer, tactics also adopted by “big carbon” to challenge climate change. One example is to claim the reduction in smoking in Australia was a continuation of existing decline (remember the “natural variation” argument by climate change deniers). The second was to claim that there was an initial fall followed by a recovery. Even if true, this could have a lot to do with the non-regulated marketing techniques they were forced to employ which (and here is the real reason they oppose) led to people switching to cheaper brands and the companies introducing financial incentives, leading to lower profits.
Heavily discounted twin packs also teach smokers, through financial reward and penalty, to buy twin rather than single packs. This is of particular concern since research shows that larger purchases trigger higher consumption.
In 2014 the industry claimed tobacco consumption had actually increased after plain packaging. While this was disproved, it suggests big tobacco anticipated increased consumption as smokers switched to twin pack purchase behaviour.
Rather than narrowing the range of brands available, as claimed by them beforehand, the tobacco companies have also introduced cheaper ranges and discounted existing ones.
Australia’s leading brand Winfield supported more than 20 brand variants in 2015-2016 compared to just 12 in 2012-2013. Brand differentiation is a proven marketing approach for generating greater sales, with each variant targeting a specific consumer market segment.
Since plain packaging was introduced, tobacco companies have varied the names of brands as well. Names have evolved to include the information previously covered by packaging, such as colour and new product features. For example, Dunhill Infinite is now Dunhill Infinite White + Taste Flow Filter.
The use of a color name branding is a tactic to imply healthier products. You may note that the Marlboro pack is for “Marlboro Gold”. The previous branding of “Marlboro Light” was already banned in the UK because of the implied low tar/health claim. Marlboro has also introduced a change to the internal construction of their packs. Instead of a card pack with a rip-out “silver” paper cover over the cigarettes, there is now an internal foil bag with a re-sealable cover stuck to the opening flap. Presumably this is to avoid the cigarettes drying out. (This is allowed by the new law).
It is quite possible that the tobacco companies will attempt to take the appeal to the European level. An appeal based on competition and sales across borders at the European Court of Justice is possible but unlikely as the court’s authority will end with Brexit. The separate European Court of Human Rights might be a forum for a case of illegal forfeiture of brand designs etc but that is a bit of a stretch. Meanwhile, Big Tobacco continues to fight plain packaging through the World Trade Organization. In the case of Australia and because the WTO deals with country to country disputes, Big Tobacco had to co-opt help from (among others) Ukraine, Indonesia, Cuba, Honduras and the Dominican Republic. Ukraine, which does not export tobacco to Australia, suspended its complaint in 2015.
Health campaigners were perplexed by Ukraine's lawsuit because it is also a party to the United Nation's Framework Convention on Tobacco Control and backed guidelines on how to implement the treaty, including enforcing plain packaging.
British American Tobacco has previously said it was helping meet Ukraine's legal costs in the case against Australia, with individual companies unable to pursue litigation via the WTO.
It is of course completely coincidental that the Ukrainian complaint was made under the previous, now discredited, government headed by Mr Putin’s friend and current guest in Russia, Viktor Yanukovych and withdrawn after he had fled the country. It would be entirely wrong to suggest any financial motive in his government lodging the WTO dispute or that he or any of his ministers was bribed to do so by any tobacco company.
Notes:
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the new packs have the same image on both sides, two different packs were photographed for illustration purposes
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the decision is not yet on the UK Supreme Court site or on its YouView channel. As this was a refusal to hear an appeal, it is unclear if the decision was announced in court and will therefore be available as a video.