Abstract

Despite its legal status, tobacco products, due to the potential harmful effects on health, have never been free from various governmental regulations. However, it was easier said than done to regulate them as governments wished, and in fact there were numerous failed attempts. Thus, governments tried to come up with a better and more effective regulation that will reduce the tobacco consumption thereby promoting public health, under the name of public health of their citizens. And plain tobacco packaging measures are the latest solution suggested.

The introduction of the plain tobacco measures has stirred huge controversy (understandably so), since it is located at the very core of the intersection between international trade law, intellectual property rights and public health. In 2012, Australia took the lead and successfully enacted the Tobacco Plain Packaging Act 2011 (“TPPA”), which imposes various and significant restrictions on tobacco retail packaging, making tobacco packagings look alike. But ever since, more than forty countries have challenged TPPA for Australia’s incompliance of WTO obligations under the TRIPs. Despite two consecutive win, both domestically and internationally, therefore, the disputes over the TPPA’s, or generally plain tobacco packaging measures’ legality do not seem to end any time soon.

In the U.S, however, tobacco companies, major opponents of the measures, challenged the Family Smoking Prevention and Tobacco Control Act (“FSPTCA”), on First Amendment grounds, rather than trademark grounds. Two heated litigations in 6th Circuit and DC Circuit on various issues, including the level of scrutiny, and whether tobacco products’ potential effects on health is factual, reached seemingly disparate outcomes, resulting in circuit split. As a result, the FDA withdrew FSPTCA for further research to strike a balance between the measure and the First Amendment.

This Note will explore the relevant TRIPs provisions to evaluate TPPA, and the First Amendment theories to assess and contrast the two (seemingly) disparate decisions. Then, it will proceed to suggest drafting suggestions for future legislations in light of the analysis of the TRIPs provisions and the First Amendment theories.

Keywords: TRIPs, TPPS, First Amendment, tobacco, FSPTCA, FDA, WTO, public health, plain tobacco packaging, intellectual property, Australia, trademark