Australia Lawyer Reveals Tobacco Companies? Strategies on Suing to Eliminate Tobacco Control Law
Australia Lawyer Reveals Tobacco Companies? Strategies on Suing to Eliminate Tobacco Control Law Press Release : Faculty of Law, Thammasat University Date : 16 September 2014 Release date : For Immediate Release
The Faculty of Law, Thammasat University held an academic meeting with the title, ?When Tobacco Trademark Owners Sue the Government: Lessons learned from Australia?, featuring Dr. Johathan Liberman, Law professor from the University of Melbourne, Australia, and the Director of the McCabe Centre for Law and Cancer who shared the experience of the Australian government when it was sued by tobacco companies and was able to win its court cases.
Dr. Johathan Liberman said that the Australian government passed a law requiring all cigarette packs to use the same standard format and must print big pictorial health warnings that indicate cigarette brand with a specific font size according to government requirements. This law has been enforced since December 2014.
Dr. Johathan Liberman also revealed that 4 giant international cigarette companies used all measures to stop this legislation by giving donations totaling 150 million baht to support the Retail Tobacco Association to oppose this legislation. They claimed that this legislation will not be effective as it is time-consuming for retail tobacco stores to retrieve cigarettes for customers. In addition, they claimed the legislation is unconstitutional and contrary to international legal obligations.
The High Court of Australia took up these objections and ruled in favor of the Ministry of Public Health. The legislation was able to be implemented although it was understood that aspects of this legislation could negatively impact on business. Clearly, it was not the duty of the government to take responsibility for matters of private profit when the purpose of this legislation was to serve public health concerns. Moreover, the government did not violate trademark rights as claimed. Even though tobacco companies claimed that this legislation violated intellectual property rights on copyright and trademark, intellectual property laws do not exist by themselves, they remain a part of larger public interests and within the context of other legislation.
Asst. Prof., Dr. Pokpong Srisanit, Professor of the Faculty of Law, Thammasat University, said that the Ministry of Health decided to increase Thai heath warning pictures to 85% on cigarette packs according to Section 12 of the Tobacco Product Control Act B.E. 2535 (1992). However, three tobacco companies asked the Administration Court to stop the law enforcement and requested cancellation of the Announcement which was scheduled to go into effect on 2 October. These 3 tobacco companies claimed that the Announcement was unconstitutional and unnecessary even though nine tobacco companies including the Thailand Tobacco Monopoly already had complied with the provisions of the Ministry Notification, had already printed 85% health warning pictures on cigarette packs.
Dr. Phumin Bootaintra, Professor of the Faculty of Law, Thammasat University said that the Notification of the Ministry of Public Health did not conflict with obligations under international law in terms of intellectual property protections according to the international convention on Intellectual Property Protections (Paris Convention) which affirms government sovereignty in decisions of legislative protections on trademark. Thus, the government has the power to restrict the scope of intellectual property rights.
Ajarn, Dr. Phumin Bootaintra also said that international law provisions of the TRIPS Agreement, Article 7 states that, ?Intellectual property protections must be conducive to social and economy goals, and also maintain a balance between the rights and duties of right holders?. So, right holders of trademarks should also understand and respect the public interests of such protections.
Ajarn, Dr. Phumin was of the opinion that having an area of 15% available for brand information left on cigarette packs ensured no loss of legal protections because it provided a space for registered trademarks. According to past notifications and information provided above, the latest Notification of the Ministry of Public Health is consistent with the Constitution. This Notification is in accordance with Section 12 of the Tobacco Product Control Act which was adopted to protect the public health.
Request more information, please contact:
Asst. Prof., Dr. Pokpong Srisanit, Professor of the Faculty of Law, Thammasat University, Tel., 086 811 6197
Ajarn Dr. Phumin Bootaintra, Professor of the Faculty of Law, Thammasat University (Lampang Center) Tel: 081 442 5831
