Objections to the proposed Irish tobacco plain packaging law: an overview

Ireland is obliged by international law to reduce smoking. In the last decade we took the initiative by restricting advertising and sponsorship and introducing a workplace ban. Current Government policy goes much further: a tobacco free Ireland in 11 years. The next step toward that goal is to remove branding from tobacco products, just as the Australians did two years ago. The Oireachtas Joint Committee on Health and Children is considering a law that would make all cigarette packets look the same, containing government notices alone.

The tobacco industry lobbied ferociously against the Australian plain packaging law, but it was passed. They sued the Australian government and lost. They are funding tobacco-producing nations in taking a case to the World Trade Organisation alleging that Australia has breached international law. But intellectual property and trade laws don’t trump health protection. The Australian High Court said that intellectual property is designed to serve public policy as well as private interests. Australia implemented its law to fulfil its commitments under the World Health Organisation convention on tobacco control (FCTC). Ireland has also signed and ratified the FCTC, and while the convention doesn’t strictly require plain packaging laws the WHO encourages them. The Minister for Health’s policy of a tobacco free Ireland by 2025 was announced as an FCTC implementation measure.

The Oireachtas Joint Committee sought submissions on plain packaging and recently held hearings. Unsurprisingly, it received opposition from the tobacco industry. The industry made four core points:

  1. there is no evidence that the law will reduce smoking;
  2. it would breach national and international law;
  3. it would lead to an increase in counterfeiting and
  4. it will damage Ireland’s reputation for protecting intellectual property.

The Law Society made submissions, drafted by its intellectual property committee, which made the very same four core points as the industry, in almost identical terms. They gave no alternative view or guidance on the existence or strength of arguments that could be made against the claims of the industry.

The tobacco industry and the Law Society, of course, have a point: these laws fundamentally restrict intellectual property rights. But intellectual property rights are negative: they allow you to stop others using similar names. They do not, in themselves, give you the right to use them. Trade mark law allows authorities to refuse the registration of a trade mark if the mark is contrary to public policy.

Drug companies cannot advertise directly to consumers in Ireland. Pharmacists are required to suggest generic alternatives to branded products. These regulatory measures challenge the intellectual property rights of drug companies, who also happen to be significant foreign direct investors in Ireland. But the tobacco industry and the Law Society are not equally concerned about the effects of those laws on “Ireland Inc”. They are more interested in trying to gain support from the food industry. The Director General, Ken Murphy, worries that the next target will be Kerrygold. This ignores the obvious point that consumer foodstuffs are not, by their nature, harmful to public health when consumed as intended. This is not the case with tobacco.

All anti-smoking measures introduced over the past two decades restrict and interfere with the tobacco industry’s interests. Most also limit intellectual property rights, particularly their trade marks. “Marlboro Lights” is a registered Irish trade mark, but it can no longer be used because it suggests one product is less harmful than another. Most would consider such a restriction to be reasonable and justifiable.

The tobacco industry and the Law Society argue that plain packaging laws breach international law, in particular the TRIPS and Paris Conventions. This is not a novel legal debate: the Australians have already been down this road and there are copious academic texts and commentaries on the argument. Respected intellectual property academics like Professors Mark Davison and Matthew Rimmer argue the role of international law may be quite limited. They point to the fact that international law does not give the tobacco industry a right to use their intellectual property. It follows that if a government restricts or prohibits the use of branding, it is not attacking a protected right of the industry.

But the Law Society told the Oireachtas none of this.

The spectre of unconstitutionality was even raised by by the tobacco industry and the Law Society, but they give little detail of this argument and reason by analogy to electricity pylons and planning permission. A highly respected member of the Law Society’s own committee that drafted the submissions doesn’t agree – but this view was not put before the Oireachtas.

The tobacco industry and the Law Society all but ignore the public health motivations of plain packaging and fall back on the weak assertion that there is no evidence to justify it. This is, at best, debateable and, at worst, circular. Evidence that the law will work can only be obtained after introduction. Furthermore, the Australian law was based on significant research and was supported by leading health experts. After the law was introduced calls to smoking quitlines soared and the rate of smoking declined. Even supporters caution that it is too soon to know if the law caused that reduction, but the indications are positive.

The tobacco industry and the Law Society are also concerned about counterfeiting because, they say, plain packs will be easier to copy. The argument is nonsense and when the Gardaí and Revenue Commissioners told the Oireachtas that they did not expect an increased workload as a result of a plain packaging law, the Law Society dropped the claim. The argument is also contradictory and the tobacco industry has long maintained that all paper-based packaging is easy to counterfeit. In fact, the most difficult element of packaging to copy is the Revenue stamp, which will still appear on plain packs. As Cancer Research UK point out “The reality is that all packs are easy to counterfeit and that plain packaging will not make any difference.”

Australia is the only country to have introduced plain packaging and it has done so very recently. Firm evidence of the success of the law is not yet available but the signs are positive. There are very convincing arguments against legal objections to such a law, but the Law Society failed to bring them to the attention of the Oireachtas.

Time to end willful ignorance on tobacco packaging and lobbying

Controversy over the submissions of the Law Society on proposed plain packaging law for tobacco products continues.

It seemed, initially, that the Law Society was going to take the concerns raised by myself and a number of colleagues seriously. I was told that certain things would be looked into and a proposal was going before the Council of the Law Society in relation to lobbying. But we were also referred to as a “vested interest” (!) by the President of the Law Society who subsequently dismissed our views as “conspiracy theories” and has effectively refused to look into the issue any further.

A member of the Council of the Law Society has written an article which is distinctly dismissive of our concerns, despite the following admission:

it’s important to note that what this column knows about IP law could be written on the back of a plain cigarette packet with room for several “SMOKING KILLS” reminders, so we are not taking sides here

When they appeared before the Oireachtas Joint Committee on Health & Children, the President and Director General were also at paints to point out that IP was not an area they specialised in. The problem with the submissions is that if they are examined with any reference to people who do have knowledge of IP law it is plainly obvious that the submissions do take sides.

So it is useful to add to the debate a contribution from Dr Matthew Rimmer, a leading Australian IP academic, which has been published here.

In its efforts to thwart the introduction of plain packaging of tobacco products in Ireland, Big Tobacco and its allies like the Law Society of Ireland have marshalled a number of arguments, similar to those which decisively rejected in Australia. It is disappointing that the Law Society of Ireland has been promulgating a number of myths promoted by Big Tobacco. It should better than to uncritically adopt the rhetoric and the talking points of the tobacco industry … Rather than listen to Big Tobacco’s phony arguments about trade and intellectual property, Ireland should introduce the plain packaging of tobacco products to protect the common good and the public health of its people.

Update on plain packaging

Further to my recent post about the submissions of the Law Society on plain packaging of tobacco products to the Oireachtas Joint Committee on Health and Children, the below letter was sent yesterday by a number of solicitors to that Committee.

Solicitors and “plain packaging” laws

I wrote earlier about plain packaging laws for tobacco products and intellectual property. I mentioned that the Law Society had made submissions to the Oireacthas Joint Committee on Health and Children in relation to the issue.

I, along with 12 other solicitors who are members of the Law Society, did not endorse the submissions made by the Law Society before they were made and do not agree with them. On Monday afternoon, we wrote to the Society. A copy of the letter appears below.

I have received a response from the President of the Society today to say, essentially, that it is under consideration. The Director General of the Society has also written to The Irish Times in relation to a clarification he makes about their reporting of the issue, and that letter may well appear tomorrow. The President tells me:

The elected representatives of the solicitors profession, who comprise the Council of the Law Society, will continue to decide on what issues and with what content the views of the Law Society will be submitted to the many Government Departments, agencies, Oireachtas Committees and, indeed, other bodies who constantly seek the Society’s views on a vast range of different issues.

Tobacco packaging and intellectual property law

Photo by http://www.flickr.com/photos/sludgeulper/

Misty water-colored memories, of the way we were

The Oireachtas is currently considering a draft law that would introduce mandatory “plain packaging” of tobacco products. Last week, the Law Society appeared before the Oireachtas Joint Committee on Health and Children to make a presentation opposing such a law. RTÉ’s Prime Time covered the issue on Monday evening.

From Irish Cancer Society

I’ve seen the future and it will be; I’ve seen the future and it works

A written submission was made by the Intellectual Property Law Committee of the Law Society in December 2013.

Videos of the Law Society’s appearance before the Joint Committee appear at the end of this post.

A number of issues arise, both from the point of view of the proposed legislation itself and in relation to intellectual property rights. Australia has led the way in introducing a plain packaging law and its courts have upheld the measure. A case is underway under the World Trade Organisation dispute resolution system.

One of the main arguments, made both by the tobacco industry and the Law Society, against plain packaging is that such laws may breach international treaties on intellectual property. The Australians have already been down this road, so it is worth looking at their experience and commentary.

no right of use exists under either Paris or TRIPS and … Article 20 of TRIPS has [a very limited role] in the context of the debate surrounding the legislation

An important theme of the [Australian] ruling [which upheld their plain packaging law] concerned the nature and role of IP law. The judgments stressed that IP law is designed to serve public policy objectives – not merely the private interests of rights holders.

  • Following the introduction of the plain packaging law, Australia dropped a rank in the Global Intellectual Property Center International IP Index - from fourth place internationally, to fifth. That ranking has itself been criticised by IP experts. It is notable that, in the context of the Law Society fearing that a plain packaging law would damage our international standing, Ireland does not feature at all in the GIPC index. According to Mark Summerfield:

In a number of places the GIPC somewhat disingenuously neglects to mention that the restrictions are limited to tobacco products.  For example, in its summary of key findings, under the heading ‘Moving Backwards’, it contends that ‘Australia’s plain packaging requirements severely limit the ability of trademark owners to exploit their rights, and send a chilling message to brand owners interested in selling in the Australian market’, as well as making a point of the fact that ‘[i]n 2013, five countries brought action against Australia in the WTO on the basis that the new law violates Australia’s WTO commitments.’

As far as the contribution to the index is concerned, Australia scores zero, out of a possible one point, in the category of ‘non-discrimination/non-restrictions on the use of brands in packaging of different products.’

That’s right, a total fail, on the basis of a restriction which applies to just one category of products, which is applied for the purpose of furthering public health policy!

The tobacco industry and the Law Society are also greatly concerned about counterfeiting. The Law Society submission stated:

plain packaging can only lead to an increase in counterfeit activity … The lack of distinguishing features on plain packaging will make it significantly easier to produce counterfeit tobacco products.

At the hearing of the Joint Committee, the Law Society effectively abandoned this point after representatives of An Garda Síochána and the Revenue Commissioners gave evidence that they did not expect to have to deal with an increase in counterfeiting activity on foot of a plain packaging law. According to Cancer Research UK, the argument does not hold water.

The least one can say is that the tobacco industry is very inconsistent in their main argument that plain packs will be easy to copy. On the one hand they claim that plain packs are easy to counterfeit, on the other they insist that counterfeiters already copy all paper-based material at short notice, even the most sophisticated tax stamps. The reality is that all packs are easy to counterfeit and that plain packaging will not make any difference.

An argument is also put forward that there is no evidence that a plain packaging law would be effective in reducing smoking. This argument is highlighted by the industry and the Law Society on the basis that, in the absence of such evidence, a plain packaging law may be unjustifiable and disproportionate. I am somewhat confused as to the points made in the written submissions and those made at the Joint Committee hearing regarding justifiability and proportionality and those elements appear to have been conflated in relation to intellectual property law and constitutional law. Nevertheless, the argument seems weak in an Irish context and at least in relation to the Constittuion, one Irish intellectual property expert has concluded that “on balance, plain packaging legislation is unlikely to be struck down on Irish constitutional property grounds”.

The tobacco industry commissioned its own research which, unsurprisingly, is inconclusive as to whether or not plain packaging laws have any effect on smoking rates. There appears to have been a reduction in smoking since the law was introduced in Australia, but the industry says that reduction in not statistically significant. Of course, the Australian law is still relatively new so the most that can be said is that it is too soon to say. Thankfully, the Australian media have fact-checked the industry’s claims. It certainly seems that the law has had an immediate impact:

Calls to the NSW Quitline increased by 78 per cent in the four weeks after the world-leading move in October 2012 before starting to taper off. “Our study demonstrates real behaviour change following the introduction of plain packaging,” said lead author University of Sydney Professor Jane Young. The response was more immediate and lasted longer than the 2006 introduction of graphic health warnings, said Prof Young, who is also scientific director at the Cancer Institute NSW.

Australia is the only country to have introduced a plain packaging law to date, and it has done so very recently. Therefore the evidence of the practical effects of such a law is not yet available and conclusions on the legal position of such a law remain to be tested. As things stand, it is clearly an area in which there is a significant level of debate and certainly very strong and convincing arguments against the position of the tobacco industry in relation to intellectual property law.

Challenging court closures

A few years ago there were concerns, which sometimes resurface, that the Courts Service might close the District Court in Newcastle West and transfer its sittings elsewhere. The only logical venue would be Limerick city, which would raise a number of problems for the Courts Service, lawyers and their clients.

It appears unlikely, at least for now, and in the past year some areas have been added to the Newcastle West district. Court sittings have also been reorganised. Other districts have not been so lucky and have lost out on their local court house.

The West Cork Bar Association has recently been granted leave by the High Court to challenge the closure of the court in Skibereen.

The West Cork District Court area extends from Kinsale westwards as far as Castletownbere. In recent years, there has already been seven local courts closed by the Courts Service in the West Cork area, the most recent being Kinsale District Court which sat for the last time on December 19.

The West Cork Bar Association issued a statement yesterday saying solicitors were concerned court closures were seriously eroding access to justice for people living in the region. The organisation said that if more closures were allowed to proceed, the people of West Cork would face travelling long distances to Cork City to deal with district court matters, when under the Constitution, the State has to provide courts of local and limited jurisdiction.

Solicitors pointed out that vulnerable citizens, who require the urgent assistance of the district court, such as in a domestic violence situation, will find it much more difficult to access the help and protection they need.

I mentioned previously a High Court judgment which dismissed a challenge brought by solicitors in New Ross area against the temporary relocation of court sittings to Ardcavan. The challenge was on public interest grounds and on the basis that the move threatened the applicant’s right to earn a living.

In that case, the Courts Service argued that solicitors do not have locus standi (a legal interest) to challenge the closure. Mr Justice Hedigan rejected that argument:

I accept that as solicitors practising in the relevant area they have a strong interest in the decision sought to be quashed both in their own and their clients interest. The question is fairly posed “if they do not have locus standi – who does?” The fact their interest coincides with the public interest does not, it seems to me, alter anything. In my view, the applicants have the requisite locus standi to challenge the decision made.

However, in the New Ross case the transfer was originally intended to be temporary due to an “urgent need” where the courthouse was “unsafe or otherwise unusable” and therefore the challenge was dismissed. Mr Justice Hedigan’s decision obviously leaves the wider questions open:

  1. is a court closure an attack on the constitutional right of local solicitors to earn a living; and
  2. is a court closure an attack on the constitutional right of citizens to have access to justice?

We might get an answer from Skibereen.

Protecting court proceedings from social media

[Updated 6/2/14] The most high-profile white collar crime trial in the history of the State got underway today. This post in not about that case, but rather the impact of social media on court proceedings and reporting. Previously, when the jury for that trial was being selected and sworn in, Judge Martin Nolan made a number of interesting comments which hint at the impact social media and the internet can have on court proceedings.

Jury Cat

[Judge Nolan] told the panel that it is unrealistic to expect them not to have heard of Anglo but said that anyone who has expressed strong views in public should not sit on the jury.

He said that this includes views expressed on the Internet, including Facebook. Judge Nolan said it would be embarrassing for the jurors if it emerged during the trial that they had expressed views on Anglo on such “permanent forums.”

Once the jury had been selected, he warned jurors that they “should not conduct their own investigations into the case or even read up on it. He said he will regard such activity as a breach of the jurors’ oaths.”

The risk that a juror would engage in independent research is not new but it is heightened by social media and the availability of information online. For example, a university lecturer in the UK was jailed for three months in 2012 for researching a defendant online and sharing her findings with the jury.

It is obvious from the comments of Judge Nolan that the Irish judiciary is alert to the risks. With smartphones in every pocket an array of research resources are available to everyone to an extent unimaginable fifteen years ago. The temptation for a juror to google the accused over lunch could be considerable. [In fact, the issue has already arisen: last year a criminal trial in Cork collapsed when the jury foreman informed the judge hearing the case that a juror had learned of information concerned the accused on Facebook and had discussed it with fellow jurors. Judge Ó Donnabháin warned the juror that she could be facing contempt of court proceedings and granted her legal aid in order to engage a solicitor.]

Research by jurors is an issue which the Law Reform Commission has already considered, in their 2013 Report on Jury Service.

The advent of the internet and social media sites, and in particular their ready accessibility through smart phones or Wi-Fi enabled tablets, now provide access to a wide range of materials such as archives of media reports that may have reported on the factual background to a trial, general information on scientific matters that might arise in a trial (such as DNA evidence) and a huge array of general commentary such as blogs and other material from social media. This information can contain prejudicial material, and has the potential to impact on the right to a fair trial. In recent years, trial judges have incorporated specific comments to the jury not to access information regarding the trial through internet search engines or social media.

The Commission recommended that specific reform was needed to deal with juror misconduct in carrying out “extraneous investigations” using the internet and social media. Their report includes a draft Juries Bill 2013 which includes, in section 39, an offence of making inquiries about the accused or any other matters relevant to the trial. “Making an inquiry” is defined as including “conducting any research, for example, by searching an electronic database for information (such as by using the internet), viewing or inspecting any place or object, conducting an experiment or causing someone else to make an inquiry.”

The proposed penalty, however, is a Class B fine on summary conviction – currently a maximum of €4,000. Under the existing law, referred to by Judge Nolan, such research could be a breach of the juror’s oath and result in a finding that they are in contempt of court. Such a finding could lead to a prison sentence, as has happened in the UK. I suspect that the proposal by the LRC is intended to highlight the issue for jurors and while the draft Bill is only a suggestion, one would think that a stronger maximum penalty is warranted.

Inappropriate contact between parties to proceedings is another risk, referred to by Gerry Curran in the Courts Service News in 2012.

Examples of flagrant abuse of this exist [internationally], including the appearance of disparaging remarks about other jurors on social media sites and jurors ‘friending’ each other on Facebook, trying to ‘friend’ counsel for either side and even ‘friending’ defendants in cases they were serving on.

This might appear unlikely to some readers but anyone who has maintained social media accounts for a few years is likely to have received more than one unexpected friend request. Juries already get warnings about discussing cases, but Judges may have to spell things out for jurors. According to Curran:

“[Studies suggest] that the magnitude of social change caused by social media requires the judge to adopt additional specificity when giving instructions. Brand names of social media need to be used as people are so used to using them as an extension of thought. It is also important to emphasis the fair trial element of the instruction – as the same familiarity might well cause a feeling in the juror of giving up a personal freedom in not communicating.

As if the courts don’t have enough on their plate worrying about the conduct of juries, court orders can of course be broken by members of the public. In the UK in 2013 two men received suspended sentences for posting photographs allegedly showing the now-adult killers of James Bulger, in breach of an injunction, on Facebook and Twitter (AG v. Harkins & Liddle [2013] EWHC 1455 (Admin)). That decision shows the relative speed and success with which the UK authorities have kept on top of the issue and no doubt will act as a deterrent in future.

Whatever about jurors, journalists have certainly taken to social media and many provide interesting updates in between various court hearings. [In fact, the Irish Times is liveblogging the Anglo trial.] Curran notes the risks:

Live ‘tweeting’ is akin to broadcast – it is sent with no delay, there is no taking it back, and no limits to dissemination. But what if soon after a courtroom tweet a judge rules something inadmissible, or to be ignored by the jury, or is patently shown to be a lie? In the UK guidelines effectively limit the use of Twitter to accredited media, who apply to do so and who, of course, are familiar with the court process and the consequences of endangering same.

Again, these risks are not necessarily new: a journalist might deliver an update on radio news during a lunchtime broadcast which includes material which might later be ruled on by the presiding judge. Journalists, of course, have expertise in dealing with court reporting and generally are sensitive to what should and should not be reported depending on the stage the case has reached.

Very meme

Nevertheless, recent developments certainly suggest an aversion to live tweeting or “contemporaneous reporting”. In the high profile surrogacy guardianship case  (M.R & Anor v. An tArd Chlaraitheoir & Ors [2013] IEHC 91), the appeal of which is currently being heard by the Supreme Court,  Mr Justice Abbott directed that the case be heard otherwise than in public but that certain journalists be allowed to attend and report on the hearings subject to a number of conditions, including that “no contemporaneous social media reporting e.g. by Twitter shall be carried out”. [I am not sure how the Irish Times liveblog of the Anglo trial is maintained but such a blog could constitute contemporaneous social media reporting.]

Similarly, family law proceedings have now been opened up to the media who can report cases so long as the parties are not identified. New guidelines on reporting of such cases prohibit live-tweeting (although the Courts and Civil Law (Miscellaneous Provisions) Act 2013 do not contain the prohibition). Those guidelines appear to have been circulated to judges but not, to my knowledge to date, to lawyers and they don’t appear to be available on the websites of the Minister for Justice or the Courts Service.

As with many areas of the law, it is enforcement rather than any new measures themselves that will be interesting. Recent experience in the UK is of effective detection and prosecution of offences followed by serious penalties. The Anglo trial, which will last for months and be of intense media interest, may provide the first real test for the Irish court system in dealing with these dangers.



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