Comment: Brussels bureaucrats and Tory eurosceptics can work together to defeat plain packs

By Nathan Dabrowski

To call them unlikely bedfellows would be an enormous understatement. Hard-line Conservative MPs have made a mission out of pushing for a British exit, or 'Brexit', from the European Union, threatening the very cohesion of their party. But in an especially ironic twist, the recent parliamentary skirmish over plain packaging for tobacco products could find the eurosceptics on the same side as the eurocrats.

After what has been largely billed as a government U-turn, plain packaging is officially back on the table. The policy, based on the idea that flashy colourful pack designs are partly responsible for stubborn smoking rates in the UK, would force tobacco countries to remove any branding from their products (colours, logos, trademarks, or corporate logos). All tobacco products would henceforth be sold in standardised drab packages (a purposely 'unattractive' colour is chosen, usually black, brown or a urine-tinged yellow) with graphic images and health warnings taking up the entirety of the pack's surface. So far, Australia is the only country that has implemented plain packaging measures, which came fully into force on December 1st, 2012.

Though just a bit more than a year has passed since plain packaging's implementation in Australia, proponents and opponents alike are already scrambling to interpret the policy's impact on smoking. Overall, there appears to have been little effect on smoking rates so far, although anti-smoking groups argue that plain packaging mainly stops young people from taking up the activity so a longer view is necessary.

The parsity of evidence has not stopped European countries from declaring their desire to push ahead with similar measures. Beyond Westminster, Ireland and Scotland have also voiced their desire to implement plain packaging initiatives.

Surprisingly, the most vocal opponents to the introduction of plain packaging in the UK have not been tobacco companies but MPs themselves. Cries of "shame" from the Conservative backbenches met undersecretary for health Jane Ellison's announcement that plain packaging should be implemented in spring next year, with several prominent MPs calling the policy a nanny state measure. "Conservatives believe in freedom and the best way to stop people smoking is through education and not by banning things," said Robert Halfon, Conservative MP for Harlow. Conservative MP Nick de Bois argued that plain packaging is ineffective, supports smuggling, and "goes against Conservative values and philosophy".

Labour has its own share of rebel MPs, a number of whom signed an open letter to former health secretary Andrew Lansley in June 2012, arguing that there is "no reliable evidence that plain packaging will have any public health benefit". Among these Labour MPs were Kate Hoey (Vauxhall), Gerry Sutcliffe (Bradford South) and Mary Glindon (North Tyneside), as well as two Democratic Unionists, Ian Paisley (North Antrim) and Jeffrey Donaldson (Lagon Valley). Predictably, Ukip, who may be set to finally infiltrate the House of Commons next year, rejects plain packaging in even stronger terms. Paul Nuttal, Ukip MEP for the North West of England, simply referred to such initiatives as "plain nonsense".

The European Union has also shown itself to be unenthusiastic about plain packaging measures. In a vote on a proposed revision of the Tobacco Products Directive last October, the European parliament struck down an amendment that would require plain packaging for tobacco products, citing intellectual property concerns. At the core of the debate is the Trips (Trade Related Aspects of Intellectual Property Rights) agreement, which was enacted by the UK in 1995 and enshrines certain commercial rights. The question is whether the mandatory standardisation of tobacco packages constitutes an infringement of a company's fundamental right to property, as it would bar businesses from using the trademarks for which they have registered.

According to Trips, "protectable subject matter" under the agreement is "any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings". Though it will be a matter for international corporate lawyers to dispute, there are good grounds for claiming that plain packaging does indeed violate tobacco companies' rights under Trips. This is evidenced by the  five countries, Ukraine, Honduras, Cuba, Indonesia and the Dominican Republic, that are currently challenging Australia's plain packaging law through the World Trade Organisation (WTO).

At the end of day, the debate will come down to whether governments or the European Union feel they can violate intellectual property rights if the public health risks are deemed great enough.

In other words, it is a debate on whether the state can override individual or commercial rights if this is judged to be in the public interest, and it is hesitation on exactly this point that has made an unlikely coalition between Eurosceptic Tory backbenchers and Brussels' bureaucracy possible.

Nathan Dabrowski is an eastern European correspondent based in Krakow.

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