Tobacco producing countries will battle packs law

Source: Irish Examiner

19 Aug 2014

Tobacco producing nations are expected to challenge Ireland’s move to outlaw branded tobacco packaging, the new junior jobs minister has been warned by his department.

Ireland will likely face a constitutional challenge and complaints to the World Trade Organisation (WTO) over the anti-smoking move, Ged Nash was told by his officials.

Countries and firms are watching events as it may dictate how governments legislate for other harmful goods such as alcohol and fats, officials say. Global tobacco giant Philip Morris also said this week it would sue Britain for £11bn if plain packaging for cigarettes is enforced there.

Documents obtained by the Irish Examiner show officials told Mr Nash that Ireland faces “scrutiny and questioning” on the new law at a key WTO meeting in November.

Australia is already facing challenges from Cuba and Indonesia among nations to its ban on tobacco branding. The tobacco producing countries claim the rules breach trade and intellectual property regulations.

Department of Jobs, Enterprise and Innovation briefing notes for Mr Nash released under Freedom of Information outline what lies ahead for Ireland in the tobacco dispute.

“Ireland might expect to have (a) a constitutional challenge and (b) to have complaints against it at the WTO, by producing countries,” it states.

The notes were drawn up by two department assistant secretaries general.

Following publication in June by the Government of the plain packaging legislation, the bill was sent for approval to the European Commission and WTO.

Objections can be lodged with the commission until December, while the WTO will discuss barriers to trade the law may create at a meeting later this year. TDs will not have a final vote on the law until 2015, after it is examined in Brussels.

The private briefing papers, given to Mr Nash last month, say Ireland has “come under scrutiny” at a WTO committee on technical barriers to trade. This is “because our new legislation on tobacco is seen by some WTO members as inhibiting fair trade under the rules” of the organisation.

Formal dispute settlement proceedings against Australia through the WTO have already been brought by Cuba and Indonesia over plain tobacco packaging there. The briefing for Mr Nash notes that up to 30 countries are monitoring that case and this indicates “the extent of interest” in the ban.

Any legal case against Ireland will be taken on constitutional grounds with claims the packaging ban infringes intellectual property rights under article 40 and 43.

Tobacco companies could lodge massive claims. But the Government is expected to argue that property rights have to be balanced with social good, such as public health. Health charities say the branding ban may reduce the 5,200 yearly smoking-related deaths.

Australia has already defeated a similar legal challenge. Smoking rates there dropped by 15% in recent years.

The dispute may also have implications on how alcohol, sugar and fats are legislated for, officials say.

The Irish Examiner revealed this week that German businesses and MEPs asked Enda Kenny to scrap the plans.

© Irish Examiner Ltd. All rights reserved

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