In May 2016 tobacco plain packaging legislation was enacted in the UK, to come into effect after a one-year transitional period [Ref: BBC News]. Cigarette packs will now be a single colour, which market research claims to be the world’s ugliest, the brand name will be written in a standard font, size and location [Ref: Brisbane Times], and new health warnings covering 60% of the pack will also be introduced [Ref: Guardian]. The UK’s move, along with others such as France [Ref: Guardian] and Canada [Ref: Guardian], follows in the wake of the Australian Tobacco Plain Packaging Act 2011 (TPP) which required all tobacco products sold in the country to be sold in ‘plain’, standardised packaging, with large graphic health warnings covering the majority of the pack [Ref: Australian Government Department of Health]. The Australian policy aimed “to get rid of seductive and exciting packaging that is specifically designed to appeal to young people and make the idea of starting to smoke less attractive” [Ref: Guardian], reducing the number of smokers long-term, primarily by reducing uptake, rather than directly causing current smokers to quit. But critics of the move towards plain packaging have attacked the hypocrisy of yet another regulation on personal life choices, while continuing to reap the benefits of an estimated £14bn in tobacco taxes [Ref: Spectator]. Several tobacco companies have also made the case that plain packaging legislation has led to “a significant increase in the size of the illegal tobacco market”, costing the Australian government around AUS$1.42 billion in tax revenue annually [Ref: British American Tobacco]. Amid the competing arguments, is plain-packaging for tobacco products an effective public health policy, or is it an illiberal overregulation of our personal life choices?

Is plain packaging legally sound?
The Tobacco industry has rallied hard to overturn plain packaging policies, arguing that it has not been proven to be effective, and that they consider it to be unlawful, “because it involves governments taking property from businesses – in this case our trademarks and other intellectual property – without paying for it” [Ref: British American Tobacco]. “In March 2015, British American Tobacco launched a legal challenge against the UK Government’s decision to implement plain packaging. In an initial ruling, the English High Court found against BAT and the other tobacco claimants, declaring plain packaging to be lawful. However, BAT was granted permission to appeal the decision to the Court of Appeal. In November 2016, the Court of Appeal upheld the original decision.” [Ref: British American Tobacco] Mark Davison, professor of law at Monash University in Victoria, described the industry’s argument as “so weak, it’s non-existent” [Ref: New Scientist]. He goes on to argue that: “There is no right to use a trademark given by the WTO [World Trade Organization] agreement. There is a right to prevent others using your trademark but that does not translate into a right to use your own trademark.” [Ref: New Scientist] Given that the tobacco industry claims that plain packaging will not reduce smoking rates, some critics question why so much funding and effort has gone into challenging the law in the courts, after all: “If it won’t work, why is the industry bothering to waste its money campaigning so hard against it?” [Ref: New Scientist]

Does plain packaging reduce smoking?
Australian academic, and tobacco control activist Simon Chapman has praised plain packaging legislation in Australia as an ‘historic decision’, adding that “when the history of the rise and fall of tobacco-caused disease is written, it will note this momentous initiative” [Ref: New Scientist]. Plain packaging is argued to contribute to improving public health, “by ultimately, reducing smoking and people’s exposure to tobacco smoke” [Ref: Australian Government Department of Health]. World Health Organisation’s director-general Dr Margaret Chan has stated that removing the branding from tobacco packaging, “kills the glamour, which is appropriate for a product that kills people.” [Ref: New York Daily News] Following the 2016 post-implementation review (PIR) into the effects of the Australian legislation, Action on Smoking and Health (ash) claim that, “[t]he analysis estimated that the 2012 packaging changes resulted in a statistically significant decline in smoking prevalence [among Australians aged 14 years and over] of 0.55 percentage points over the post-implementation period” [Ref: ash]. Dr Tasneem Chipty, of Analysis Group, studied the smoking prevalence data in Australia from December 2012 - December 2015 and estimates that, “the 2012 packaging changes resulted in 108,228 fewer smokers” [Ref: Australian Government Department of Health]. The results of the post-implementation review have, however, been heavily contested. Analysis from Australian think-tank the Grattan Institute, shows that whilst smoking rates in Australia have declined since the introduction of plain packaging legislation, it is quite possible that the driving factor was not simply plain packaging legislation, but an additional 42.4% increase in tax rate for tobacco products between June 2013 and June 2015. In fact, they argue that the data suggests that smoking rates actually increased by as much as 6% in the first year after the legislation was introduced, prior to the increase in the excise rate [Ref: Breitbart]. British American Tobacco, amongst others, suggest that even if there have been reductions in the smoking rates in Australia, this is not due to the effects of TPP legislation, arguing that “smoking rates have not deviated from historic trends” [Ref: British American Tobacco].

Sin taxes and the nanny state
The policy has come under further criticism from some who claim it is nothing more than, “an affront to liberty”, and “another example of the nanny state undermining personal responsibility, and holding us, the public, in contempt” [Ref: spiked]. Others argue that from a practical point of view, it simply does not work, and maintain that plain packaging is simply a: “Soviet era-style restriction that does not sit well in a liberal democracy” [Ref: Guardian], and that “an assault on personal freedoms in the name of health is still an assault on democracy” [Ref: Guardian]. Commentator Rod Liddle lambasted the policy as a “laughable moral compromise, epitomised by the idiocy of not allowing tobacco companies to put a nice design on their packets, but still greedily taking money from them.” [Ref: Spectator] Furthermore, there is a fear among many critics that this is the start of a slippery slope towards other unhealthy industries being increasingly regulated by so-called ‘sin-taxes’, leading them to ask: “How long will it be before public health campaigners call for alcohol, fatty food, sugar or even confectionery to be sold in plain packaging?” [Ref: Plain Packs Plain Stupid]. Nonetheless, the policy has received near universal acclaim from health officials, as well as being supported by the World Health Organisation, and one columnist notes that, “smoking stands alone in its harmfulness…it kills more people than drink, drugs, road crashes, all other accidents, suicide and preventable diabetes combined” [Ref: Financial Times], meaning the government is right to take steps to reduce its prevalence. Moreover, The British Lung Foundation argues that the law “will protect children for generations … If just a fraction of […] children are discouraged from taking up smoking as a result of standardised packaging, it will save thousands of lives.” [Ref: British Lung Foundation] So are critics right to worry about a slippery slope? Is this another example of the ‘nanny state’ interfering with our personal life choices? Or do we have a duty to embrace the potential health benefits to our society by continuing to reduce the appeal of smoking?