Tobacco Plain Packaging in Sweden?
In Sweden, tobacco advertising is now prohibited via most communication channels. As a result, tobacco product package design is one of the few remaining marketing opportunities for sellers of tobacco products. In 2012, Australia was the first country to legislate neutral (plain) tobacco packaging, which only permits the name of the brand to be printed on a plain background. The subject has since been hotly debated in many countries and currently is under investigation in Sweden and will be reported in spring 2016.
The Australian plain packaging legislation raised the question of the extent to which a country may improve public health by limiting the use of trademarks and trade dress. One issue is how neutral packaging legislation relates to the Trade-Related Aspects of Intellectual Property Rights Agreement (“TRIPS”), which contains minimum rules all World Trade Organization (“WTO”) members must follow and protocols on the legal protection of trademarks. TRIPS allows countries to take measures necessary to protect public health if they adhere to WTO rules. However, Article 20 of TRIPS states that trademark use must not be unjustifiably prevented by the imposition of specific requirements that may damage a trademark’s ability to distinguish goods and services from each other. Some countries have accused Australia of violating TRIPS and this issue is under WTO review with a decision expected in spring 2016.
A new Tobacco Products Directive (2014/40 / EU) (the “Directive”) is expected to be introduced in all EU countries by spring 2016. The Directive contains no mandatory neutral packaging provisions but it does not prohibit them either. Each EU member country can decide how tobacco packaging is regulated; however the Directive does require textual and pictorial warnings covering 65% of the front and back of a cigarette package and a cuboid shape on cartons. Neutral packaging legislation will be introduced in France, Ireland and the United Kingdom but is not yet in force. Extensive plans are also underway in Canada, New Zealand, South Africa and Uruguay to pass similar legislation. So far, Norway has passed the most extensive packaging laws as it also requires plain packaging for snuff boxes.
While plain packaging for cigarettes may be easily accepted since smoking is known to be unhealthy, the broader consequences of such rules must also be considered. In Sweden, and probably elsewhere, it must be asked if people are prepared to sacrifice even more freedom of expression via the imposition of plain packaging rules. This article explores how plain packaging relates to trademark law.
Swedish Rules for Tobacco Advertising
Under the Freedom of the Press Act (the “FPA”), constitutional protection means public institutions are barred from intervening against abuses of freedom of expression, or complicity in such abuses, other than in those cases and in such manner as set forth in the FPA.
The FPA explicitly exempts alcohol and tobacco advertising regulations from constitutional protection. Constitutional support for such legislation was deemed necessary because it was uncertain whether total bans on advertising for certain products would comport with FPA 1:2, which specifies that no written matter may be scrutinized prior to printing and the printing of such matter cannot be prohibited. According to FPA 1:9, notwithstanding the FPA, laws must govern bans on commercial ads if used in the marketing of alcoholic beverages or tobacco products. Such laws govern bans on commercial ads introduced to protect health, or the environment, pursuant to European Community accession obligations. Thus, the above exemption from the FPA’s exclusive scope enables rules on the marketing of tobacco products in the Tobacco Act (the “TA”). However, while the advertising ban applies to commercial ads, advertising brochures, labels, packaging and package printing, price lists and the like fall outside the advertising ban.
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