Editorial: Plain-pack law would be plain theft

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Big Tobacco, as the industry is coming to be called even by objective reporters, is unlikely to find much popular sympathy in its fight against the latest threat to its business - plain packs.

Most people probably wonder why it matters if cigarette manufacturers are no longer allowed to put their brands prominently on the packets. Few appreciate how much any consumer product relies on its brand, and how much manufacturers invest in establishing and maintaining the brand.

"Intellectual property" might be a grandiose name for commercial branding but it is most certainly property and governments are guilty of confiscating it if they legislate to prevent its use. The New Zealand Government is contemplating legislation, "subject to consultation". That is probably an invitation to industry lobbyists to continue talking to ministers while the Government waits to see if similar legislation in Australia succeeds.

The Gillard Government's plain-packaging law, to come into force in December, has just survived a challenge by four cigarette companies who claimed the law breached Australia's constitution. The High Court ruled it did not. But that is just the first of three legal tests the law faces.

The second is a case before the World Trade Organisation brought by Governments of a number of tobacco-producing countries with the support of brand-owning companies. They claim plain packaging is a technical barrier to trade. The third action, brought by one company, Philip Morris, challenges the law under the terms of an Australian trade agreement with Hong Kong.

As long as the Australian law does not discriminate between tobacco products of any country it should satisfy WTO rules and free-trade agreements. The fears that these sorts of actions threaten a nation's sovereignty and democracy are promoted mainly by those opposed to free trade in principle, not tobacco in particular.

We should not let our thinking be reduced to a simple assertion of our right to decide these sorts of issues for ourselves. We should proceed in the knowledge that ultimately no international tribunal can stop us doing what we think right. Would it be right to confiscate tobacco brands? The companies conceded long ago that their product is harmful.

They have been obliged to carry health warnings on the packets and have been denied the right to advertise the product or their brands except on the packets, which cannot now be displayed where they are sold. One local supermarket chain has taken to slipping packs into opaque bags to hand to a customer. How silly need this get? If packs cannot be displayed, or advertised at all, what is the point of legislating for them to be 'plain' in the hands and purses of individuals?

Tobacco remains a legal product, smokers are adults, addiction can be beaten, millions have done so. There cannot be a smoker or would-be smoker in the world who remains unaware that smoking kills. Yet some make that choice.

These days they are harming only themselves. They have been banished from all enclosed public places where their exhaled smoke would pollute the air others breathe and, it is said, pose a threat to others' health. There is plenty of help available to them if they want to quit.

There comes a point in the pursuit of public health that puritanism becomes oppressive. Plain packs would not be the first reduction of tobacco companies' commercial rights; they may indeed be the last. If brands can no longer be distinguished even on the packet, they might be destroyed.

Property rights are important, even for industries for whom we have distaste. Governments should not remove them unless it is necessary. Plain-pack legislation would be plain theft.