No smoke without ire

By Brand Heeler

Standardised packaging for tobacco products

On 20 May 2016, the UK Standardised Packaging of Tobacco Products Regulations 2015 were introduced, with similar legislation being implemented in Ireland and France. These Regulations do pretty much what they say on the tin (or on the packet): following Australia’s lead in 2015, cigarettes, cigars, rolling tobacco etc can no longer be sold in the UK with bright colours or attractive logos; instead they must comply with new standardised, plain packaging requirements.

The only permitted colour scheme is now Pantone 448C – specifically selected as ‘the world’s ugliest’ colour and which apparently generated no positive connotations in market trials (we can only assume they didn’t canvass enough soldiers or olive farmers!) All brand names will now also have to be written in Helvetica in a standard size and location, with health warnings covering 60% of the packaging as shown in this Department of Health image:

The impact of this on rates of smoking remains to be seen. Unsurprisingly, tobacco companies have been vociferous in disputing it will be as effective as health experts hope. They have also objected to the implication that consenting adults need to be treated like children and denied the freedom of choice. But, as well as challenging the official evidence, the tobacco industry has resorted to some fairly creative legal arguments, including that they have been unjustly deprived of their lawful property (a right enshrined in Magna Carta) because they can no longer use their trade marks effectively. The High Court in London rejected this argument just one day before the regulations came into force, ruling that there had not been any expropriation of property as the trade marks in question were still valid and still belonged to their respective owners.

An interesting aspect of the High Court’s decision was a debate over what a trade mark registration is actually for – is it a positive right to use a mark? Or a negative right to prevent others using it? In reality, these are two sides of the same coin and neither makes much sense without the other. But the tobacco companies argued that the regulations led to such an imbalance between the positive and the negative that their trade marks ended up fatally crippled. The High Court accepted that the positive aspect had been ‘significantly and even substantially’ diminished by the regulations but disagreed that it had been wholly destroyed. And, since the regulations specifically preserve the right of tobacco companies to register and enforce their trade marks, the negative aspect survived pretty much intact and was not reduced to an ‘illusory or fictitious’ right as had been claimed. Since the trade marks also retained their core function as identifiers of the origin of the products, their owners were left with plenty to play with and there was no basis for striking down the regulations or awarding compensation.

Similar arguments have also failed in Australia, where Philip Morris even tried to rejig its business affairs so as to be based in Hong Kong in order to sue Australia under the rules of a bilateral trade agreement. The tobacco industry has been fighting a rearguard action for several decades now: they haven’t been allowed to advertise their products in the UK since 2002, they’ve not been allowed to display them since 2012 and ‘plain packaging’ is very much just the latest turn of the screw.

But some of the greatest brands and most memorable adverts of the last few decades have been for tobacco, and you don’t have to like smoking to admire the creativity and flair they’ve demonstrated, often in response to ever tighter controls over their marketing. From the Hamlet Man continually finding solace from the harsh realties of life, to the surrealism of Benson & Hedges or Silk Cut, there’s been a lot to admire, however tentatively. The whole point of Pantone 448C is to be bland and anonymous, so it will have seriously failed in its intended purpose if it ever acquires any brand value. Still, we can’t help feeling a little bit nostalgic for the strains of Bach’s ‘Air on the G String’.

This article contains our thoughts and opinions on an issue of general interest and is written from the perspective of Australian and/or English law. It is not legal advice and is not provided in the context of a solicitor-client relationship. It may not even be relevant to your jurisdiction. No duty of care is assumed or accepted. Please carry out appropriate research and consult with a suitably qualified legal expert before taking any action or making any decisions.