Who: The tobacco industry; the High Court
When: 19-20 May 2016
Law stated as at: 9 June 2016
The UK has become the second country in the world and the first in Europe to require cigarettes to be sold in plain, standardised packaging. This follows the lead of Australia which implemented the same measures in December 2012.
The new regulations
The Standardised Packaging of Tobacco Products Regulations 2015 (the “Regulations”) took effect from 20th May 2016, at the same time as the revisions to the EU Tobacco Products Directive came into force which introduced new rules on the size and placement of the health warnings.
The Regulations standardise the packaging of all cigarettes and hand rolling tobacco for retail sale by:
- specifying mandatory colours for retail packaging (brown for the outside and white or brown for the inside);
- permitting only specified text on each packet (such as the brand and variant name) which must be in a prescribed text form; and
- allowing health warnings and fiscal marks (including covert markings and any future requirements that may be introduced to tackle illicit trade) to remain in place.
Retailers are permitted to sell existing stock of non-standardised packs, but after these have run out and the standardised packets fill the shelves (albeit hidden behind the counter), the major brands will no longer be distinguishable from each other.
Menthol and other flavoured cigarettes will be banned outright from 20 May 2020, whilst packs must contain at least 20 cigarettes.
The tobacco industry’s last stand fails
The coming into force of the Regulations was preceded by a legal challenge against standardised packaging by four of the world’s largest tobacco companies – British American Tobacco, Philip Morris International, Japan Tobacco International and Imperial Brands. However, on 19 May, the High Court in London struck down the claim. British American Tobacco and Japan Tobacco International both said they intend to appeal the decision
Justice Green of the High Court said that “It is wrong to view this issue purely in monetised terms alone. There is a significant moral angle which is embedded in the regulations which is about saving children from a lifetime of addiction, and children and adults from premature death and related suffering and disease.” Indeed, health campaigners have rejoiced at the decision to uphold the Regulations, hoping that plain packaging will reduce the number of smoking-related deaths (which currently stands at 6 million worldwide each year according to the World Health Organization, and 100,000 in the UK alone).
Why this matters:
Clearly the heyday for tobacco brands is long since over, given the UK’s ban on advertising of tobacco products. However, the fact that the law has now gone even further to ban distinctive packaging shows how important packaging is for brand recognition. Before the ban, every time a smoker pulled out a cigarette, this was a form of advertising for the relevant brand to those within eyeshot. However, tobacco companies will now no longer be able to rely on this as a way to make their brand distinctive.
It will be interesting to see the effect that the Regulations will have on the tobacco market, not just in terms of whether the purchase of cigarettes decreases across the board, but whether the traditionally better known-brands find their market share diminished due to a level playing field on how each product looks.