Proposals by the Scottish Government requiring plain packaging for tobacco products will result in the removal of all trade marks, other than the brand name in standardised plain font, from packets of cigarettes.
The rest of the packaging will comprise health warnings and a uniform colour (in Australia this is "drab brown" which is calculated to be unpleasant to the eye).
I have been looking at this issue in the context of research I have been carrying out for clients, Philip Morris International.
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The Scottish Government's decision to legislate for plain packaging is part of its stated objective to have a smoke-free Scotland by the 2030s. Smoking tobacco is harmful to health. I think we all get that now. But the Government wants to save us from ourselves. The Government's thinking is that the lure of tobacco packaging may be too much for us to resist and wish to take from us the temptation it presents.
Leaving aside the uncertainty of whether plain packaging will achieve the Government's objectives of reducing smoking, it is worth giving consideration to whether it would mark the start of an approach where the Scottish Government would attempt to impose plain packaging on any items deemed to be unhealthy - for instance alcohol, fizzy drinks and fast food. Public health campaigners are unlikely to stop at tobacco.
Stirling University recently won a prize for research showing that children must be protected from commercial marketing of not only tobacco, but also alcohol and "junk" food.
If we step back from the Scottish and UK debate we can see the potential for plain packaging to spread. Australia introduced plain packaging on tobacco products a couple of years ago and there the debate has moved to other products perceived by the Australian Government as being so harmful to health. The first in line are seen to be alcohol and "junk" food which the World Health Organisation (WHO) says are "prime candidates [for] stronger regulatory controls".
However, other countries may introduce plain packaging of alcohol or other products before tobacco depending on their particular public health or other policy priorities. If Australia wins its WTO case any goods considered harmful to public health, and not just tobacco, will be vulnerable to de-branding.
Another country already considering plain packaging of non-tobacco products is Indonesia. As a major tobacco exporter, it has threatened to retaliate against Australia (and New Zealand if it follows its neighbour) by imposing plain packaging on wine imports.
Glasgow Central MP Anas Sarwar has already urged ministers to intervene to keep Scotch out of any dispute with Indonesia if Scotland or the UK adopt plain packaging of tobacco. But how would they make the case that alcohol should be treated any differently?
With the benefit of the Australian experience in mind, it is important for us to view the UK plain packaging debate, not just as an issue for the tobacco industry, but as a wider issue. How far should Government protect us from ourselves in making choices which may not be objectively the best for us? And are we prepared for the consequences if other countries and cultures choose to extend it to products that we hold dear?
At this stage, tobacco is the first product which the Scottish Government has chosen to regulate in this way. However, experience suggests regulation of other products almost always follows. How far are we prepared to accept the application of plain packaging to products which we may enjoy but know that they are unhealthy?
I think the provision of better information on the contents of food and alcohol is a great step forward. Previously, I really didn't appreciate the fat and salt content in my favourite brand of crisps. I can now make an informed view on whether I should indulge myself.
But do we want or need to be protected from "junk" food which has a high sugar, fat or salt content? Of course it does not stop with "junk" food and alcohol. What about plain packaging for services seen as harmful to us? Might betting shops and tanning salons across Scotland all have to be rebranded an unpleasant colour to help us resist putting on a line or 30 minutes on a tanning bed? I certainly hope not.
As an intellectual property lawyer and a consumer I see the value in our being able easily to distinguish brands which we like and value, from their lesser competitors. That is the essential function being performed by the trade marks which are placed on products and services. The concern I, and other IP lawyers have with this debate is that none of these industries wishes to participate in it. These companies do not wish to be seen to be aligned with the tobacco industry, instead always seeking to point to the clear blue water between the nature for their products as compared to tobacco. But the concern with this approach is that this first domino will be knocked over and by then the other dominos may already have been lined up and be ready to go.
Colin Hulme is a partner of Burness Paull LLP.