The struggle against Australia’s new plain packaging laws is no exception.
Big tobacco has rolled out the big lawyers and won the support of tobacco exporting countries.
Ukraine and Honduras have challenged the laws in the World Trade Organization, and now a third country looks set to join the complaint.
The Federal Government denies the laws are quote “anti-trade” and has vowed to fight the challenge.
But an expert in intellectual property is worried. A new trade agreement between the United States, Australia, and several other Pacific nations could weaken Australia’s defences against these challenges.
Simon Lauder reports.
SIMON LAUDER: Ukraine and Honduras have already complained to the World Trade Organization about Australia’s new laws, which put an end to colourful branding of cigarette packets and force manufacturers to print graphic health warnings instead.
Now the Reuters news agency reports that the Dominican Republic is about to join the complaint.
None of those three countries has a significant share of the Australian tobacco market, which is on the decline anyway.
The head of the Federal Health Department, Jane Halton, says the tobacco companies are providing legal advice to WTO members to encourage them to take action against Australia.
She spoke about it in a video message for the World Health Organization.
JANE HALTON: All of these actions are designed to try and intimidate the Australian Government and Australian officials, to actually ask us to relent in our efforts to protect the public health of our citizens.
SIMON LAUDER: Professor Andrew Mitchell from the University of Melbourne Law School.
ANDREW MITCHELL: Big tobacco’s concerned that if Australia’s allowed to introduce this new restriction on tobacco advertising that other countries that have more lucrative markets will follow.
And also by using other countries as a proxy, it creates the appearance that plain packaging is opposed by entities other than just big tobacco.
SIMON LAUDER: Professor Mitchell’s colleague, Associate Professor Tania Voon says the WTO challenge is likely to slow down any knock-on effect the Australian initiative may have.
TANIA VOON: They can have a chilling effect because of the time taken and the resources spent in defending the challenge.
SIMON LAUDER: So this could deter other countries from quickly following Australia’s lead?
TANIA VOON: That’s right and that’s true regardless really of whether the challenges have a legal basis and whether they succeed or not.
MATTHEW RIMMER: The Ukraine would have more chance of winning the UEFA (Union of European Football Association) football competition then they would of winning this WTO action.
SIMON LAUDER: Dr Matthew Rimmer is an associate professor in intellectual property law at the Australian National University.
Dr Rimmer says Australia is negotiating a new trade deal with the US and Pacific Rim nations, which could invite new challenges.
MATTHEW RIMMER: Australia needs to ensure that its plain packaging regime is not vulnerable to challenge under the Trans-Pacific Partnership.
SIMON LAUDER: Negotiations over the Trans-Pacific Partnership have been going on behind closed doors for more than two years.
Today a key chapter was leaked, showing Australia has refused to agree to a system of tribunals which would be used by private companies to sue governments for breaches of trade conditions.
Australia’s objection to investor-state dispute settlement provisions is already on the public record.
In the WTO case, Australia also has a public health defence.
Dr Rimmer is worried the Trans-Pacific Partnership won’t leave any room for one.
MATTHEW RIMMER: There’s a concern that a very expansive intellectual property chapter in the Trans-Pacific Partnership might help tobacco companies. There is a concern about the regime limiting the array of tobacco control measures that could be taken by a member of the partnership.
I guess the problem is further complicated by the fact that the negotiations are being held in secret.
SIMON LAUDER: The WTO is not the only front in the battle against Australia’s plain packaging laws. Tobacco companies have also taken the Government to the High Court and Philip Morris is suing for damages under a Hong Kong-Australia business treaty.
A spokeswoman for the Attorney-General Nicola Roxon says the Government will defend any challenge that might arise at the WTO.
She says the Government’s measures are not anti-trade, they’re anti-cancer.