Plain packaging

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Plain packaging, also known as generic, neutral, standardized or homogeneous packaging refers to packaging that requires the removal of all branding (colors, imagery, corporate logos and trademarks) permitting manufacturers to print only the brand name in a mandated size, font and place in the pack. There have been moves to ban or abolish branding for products that health practitioners identify as unhealthy and bad for the public. It started with tobacco products to deter smoking by removal of positive association of brands (including design and symbol) with the consumption of tobacco. Removal of branding on tobacco started on December 12, 2012, when Australia enacted its Plain Packaging Act and became the first country to require plain packaging, with all packets being sold in logo-free, drab dark brown packaging. Some tobacco companies opposed to plain packaging have sued the Australian government but lost these cases.

Since then, a few European countries followed and legislated their own plain packaging laws: France (May 2016); the United Kingdom (May 2017); Norway (July 2017); Ireland (October 2018); Belgium (January 2020 manufacturers/January 2021 retail level; the Netherlands, the Saudi Arabia, Slovenia, Turkey, Israel (by 2020); Belgium (2021); Hungary (2022). In the Asia-Pacific region: New Zealand (March 2018); Thailand (September 2019); Singapore (July 2020); Malaysia (After WTO Challenge is resolved); South Korea (planning by 2020) and Canada (November 2019 manufacturers/February 2020 retail level) (Source: “Economic Brand: Consumer Impact of Plain Packaging” by Bienvenido S. Oplas Jr.).

Health and social activists would want to extend plain packaging to the food and beverage industry, and to other sectors as part of “social engineering.” Target sectors include (1) High calorie foods to beat obesity; (2) Banks and financial institutions to fight debt addiction; (3) Junk foods, red meat; (4) Confectionary, crisps and high-sugar drinks; (5) Cars’ ads to fight traffic, climate change (Oplas, ibid).

The tobacco industry expressed concern that plain packaging would increase the sales of counterfeit cigarettes. A think tank supported by British American Tobacco stated that it would be “disastrous if the government, by introducing plain packaging legislation, removed the simplest mechanism for the ordinary consumer to tell whether their cigarettes are counterfeit or not” (Huffington Post UK, 2012). Other arguments against plain packaging include its effect on smuggling, its effect to shops and retailers, and its possible illegality.

Anti-smoking group New Vois Association of the Philippines favored the introduction of plain cigarette packaging in the Philippines as part of their campaign on the 2016 “World No Tobacco Day.” The Department of Health (DOH), however, is not ready to implement plain cigarette packaging and would rather focus on enforcing graphic health warnings on cigarette packs under the Graphic Health Warning Act of 2014, that took effect in March 2016, (Sun Star, May 30, 2016). Various administrations keep raising tobacco excise taxes—such as the “sin” tax law of 2012, TRAIN law of 2017 and another sin tax hike law in 2019. This has shifted smokers to tobacco alternatives like vaping and e-cigarettes, which the government has announced will also be taxed as regular cigarettes. One immediate result is the downshift of smokers’ preference from branded legal tobacco to the cheaper, illicit smuggled products.

Director General of the Intellectual Property Office (IPOPHL) Josephine R. Santiago opines that “for the Philippines, there is not enough study or evidence that evaluates effectivity of plain packaging policy. As consumer behavior may vary across these country- markets, it may not be advisable that we take on a one-size fits all approach, especially if doing so would mean trampling on private rights.” Furthermore, according to Santiago “plain packaging fails to see consumer protection aspect of trademarks. The Guidelines for implementation of Article 13 of WHO’s Framework Convention on Tobacco, among the basis for plain packaging policy, only focuses on promotional effects of logos, colors, images, stylized brand names, among other branding elements cited” (Speech, Fairmont Hotel, 16 October 2019).

The twofold purpose of trademark is to protect the public and the trademark owner. For the public, it is to be assured that they are procuring the genuine article; to be spared from confusion brought about by similar marks and to prevent fraud and imposition. For the trademark owner, the purpose of a trademark is to point out distinctly the origin or ownership of the goods to which it is affixed; to secure to him, who has been instrumental to bringing into the market a superior article of merchandise, the fruit of his industry and skill; and to protect against substitution and sale of an inferior and different articles of his product (see Murpuri v. Court of Appeals, GR 114500, November 19, 1999).

While the State should protect public health, it should do so without damaging intellectual-property rights. Banning brands through plain packaging, aimed at “social engineering,” may not have the intended results. On the contrary, the unintended beneficiaries would be the smugglers and producers of illicit products, criminal gangs, terrorists groups and corrupt government officials that allow illicit goods to be sold and circulated. The unintended victims will be the consumers who will be deprived of the freedom to choose the brand they prefer and the State which could suffer decline in tax revenues because of the shift to cheaper, illicit nonbranded products.

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