In comments submitted to the Department of Health and Ageing in response to the call for public input on the proposed legislation, BASCAP said it is “very concerned” about the Plain Packaging Bill 2011. This legislation would create a dangerous precedent that could have far-reaching impacts on the use of trademarks and other intellectual property in Australia and globally, ICC stated in its comments.
“Our members strongly support the protection of public health, and we are not questioning the adverse consequences of long-term tobacco use or the government’s role in reducing tobacco use,” said Jeffrey Hardy, Coordinator of ICC’s Business Action to Stop Counterfeiting and Piracy (BASCAP) initiative. “However, the solution being proposed is simply wrong and bad public policy. We urge the Australian government to consider policy alternatives to the ‘plain packaging’ proposal, that would further the government’s health policy goals without creating a dangerous precedent with negative consequences that go far beyond the aims of the new rules.”
Restricting trademarks and branding of products removes a valuable accountability and responsibility mechanism that consumers depend on to make the best choices in the marketplace, according to ICC.
“Plain packaging makes it easier for packaging to be copied by counterfeiters, exposing consumers to products with unknown and potentially dangerous ingredients, and it makes it more difficult for consumers to identify the manufacturer responsible for responding to complaints or problems,” Mr Hardy said.
This policy would reduce brand owners’ ability to take action against counterfeiters. And it would also increase the burden on already overstretched public agencies working to enforce intellectual property protection in the face of escalating counterfeiting and piracy throughout Australia and worldwide.
“The ability of brand owners to market their product in unique and easily identifiable ways is fundamental to the protection of intellectual property rights in developed societies,” Mr Hardy said. “Removing one industry’s ability to use its intellectual property rights opens the door to extend this violation of IP rights to other industries and other brand owners in Australia and elsewhere.”
Several governments have previously considered and rejected plain packaging as a solution to controlling tobacco use. There has been no research and no data to support plain packaging as a deterrent to smoking.
“The proposed regulations undermine the Australian government’s goals of fostering and encouraging the growth of markets for Australian products,” Mr Hardy said. “Australia has been a leading voice in support of IP and rules-based commerce, but the proposed regulations mandating the elimination of trademarks and trade dress are in direct and dangerous conflict with this view.”