TRADE MARK LAW : CIGARETTES: PLAIN PACKAGING' CONUNDRUM.

The European Commission is considering obliging the tobacco industry to sell cigarettes in identical packages devoid of graphics, logo or other distinctive signs apart from the name of the brand written in small characters and a standard style.

Dissuading purchase by putting a stop to marketing appeal is not a new idea. It is in keeping with the recommendations set out by the World Health Organisation in its 2003 Framework Convention on Tobacco Control(1), of which the European Union is a signatory. The idea is being studied by the Australian government and the UK government is considering doing the same.

On such less attractive plain or generic packaging would be added, if member states agree, the scare photos' of diseased lungs or spoiled teeth meant to frighten consumers, under the warning: Smoking kills'. Only four of the 27 EU countries consider the use of such photos worthwhile for the moment.

The Commission is now proposing other measures. These concern a more detailed indication of the harmful substances contained in cigarettes and new health warnings, even if this means adding information inside the package, as is done with medicines, in this case advice on how to quit smoking.

DRAFT DIRECTIVE

Details on the measures are given in a document that proposes revision of the existing Directive 2001/37/EC on tobacco products, on which a public consultation was opened on 24 September. The consultation period had been prolonged by DG Sanco until 17 December 2010. The tobacco industry is opposed to the proposed measures, questioning their effectiveness in terms of public health and rejecting the use of scare tactics as an instrument to make individuals more responsible. The industry warns against the risk of a worldwide surge in contraband cigarettes since plain packages would be even easier to copy and sell.

The Commission regrets in passing the disparity in labelling in the EU: some member states have compulsory warnings and others do not. Such disparity, notes the executive, reduces the credibility of information campaigns and anti-smoking measures. The Commission denounces in particular the industry's skilfulness at making their packaging very attractive with "evocative images, such as luxury, freedom and glamour," which distract consumers from health concerns.

LEGAL BATTLE

If an EU legislative proposal containing plain packaging measures is presented, an epic legal battle by manufacturers is likely to follow. Legal and internal market...