Plain packaging for cigarettes a legal minefield

New Zealand Herald, Auckland

Plain packaging for cigarettes a legal minefield

19 February 2013

Lawsuits are seen as the inevitable next step if plain packaging of cigarettes is brought in.

The government will announce a decision on the matter in the next few days.

University of Auckland professor of law, Jane Kelsey, said if plain packaging was introduced, the Government would ignite a fight with large international companies with plenty of money.

"British American Tobacco has made it clear that they will sue the government under existing bilateral investment treaties, for significant damages."

Kelsey said the Australian government was facing the same conundrum and was fighting back against the companies.

"The Australian government is facing this, and they have said, ’Bring it on’.

"The New Zealand government, John Key in particular, has been a bit more reticent about his willingness to front up to these challenges, and so it will be very interesting to see how he responds."

Kelsey said the process would be so drawn out, it probably won’t be settled until after the next election.

Managing partner at intellectual property firm AJ Park, Alan Potter, said cigarette companies own their brand, just like any other company.

"It would be wrong for someone else to take away that right to use, without proper compensation, where they are obeying all the other rules that go with using a trademark."

Potter said it was dangerous territory for the Government to enter into.

He said cigarette companies’ brands were registered trademarks, and thus their property.

"Should the government be able to take that right?

"That’s been a property right in New Zealand for hundreds of years. Should the government now be able to say, ’I’m going to take that away, you can no longer have that’?"

Potter believed it was a slippery slope once the Government started legislating against companies’ rights.