Ireland has become the first EU member state to publish legislation to introduce mandatory plain packaging for tobacco products.
On June 10 the Irish government approved the Public Health (Standardised Packaging of Tobacco) Bill 2014. The bill will now be referred to the European Union for approval, which will be required before it can commence its passage through the House of the Oireachtas, the Irish parliament. It will also be referred to the World Trade Organisation (WTO). It is intended to apply from May 2017.
The bill provides that cigarettes (Section 7), roll-your-own tobacco (Section 9) and other tobacco products (Section 10) cannot bear any trademarks except a brand name or trade name and a variant name, in certain regulated positions, fonts and colours. These restrictions will also apply to the wrapping and outer packaging. The background colour of the packaging will also be regulated.
It will also be an offence to import or sell tobacco products which do not comply with these restrictions (Section 15(3)), which carries implications for parallel imports.
The bill includes some limited allowances for trademark protection. Section 5(1) provides that nothing in the bill shall prohibit the registration of a trademark or be grounds for revocation of a registration. The entitlement to register tobacco trademarks is an addition to the heads of the bill, which only dealt with revocation.
However, this small change is unlikely to resolve the serious concerns with the bill expressed from an intellectual property, constitutional and EU law/WTO perspective by many different legal groups.
Irish Minister for Health James Reilly, who has championed the bill, reportedly anticipates litigation from the tobacco companies, assuming that the bill passes its EU hurdle. Australia is still facing national litigation and five cases under the WTO dispute procedures in relation to its enactment of plain packaging legislation in 2012. Therefore, it is safe to say that the plain packaging debate is far from wrapped up.