Legal challenges to follow MPs' vote on tobacco plain packaging

Some 367 MPs have voted in favour of standardised packaging on tobacco products, with 113 against it in a free vote that was held without debate in the House of Commons.

In June 2014 the government launched a consultation on the introduction of regulations to standardise tobacco packaging. The draft regulations set out requirements that would standardise elements such as packet colour, text, typeface and appearance of individual cigarettes.

Under the EU's Tobacco Products Directive, member states have the option to introduce plain packaging. Such an action would trigger a notification process within the European Commission in which member states have three months to send comments. If any member state sends comments, the period will be automatically extended to six months to allow other member states to comment.

Parliament's decision means the UK will most likely become the third country to introduce plain packaging for tobacco products. Ireland's president Michael D Higgins signed similar legislation earlier this week which follows Australia's lead in introducing such a law in 2012.

Australia's introduction of a plain-packaging law has not gone unchallenged. Cigar-producing nations, led by Cuba, the Dominican Republic and Honduras, have brought a claim through the World Trade Organization (WTO) arguing that packaging without branding is an assault on their trading rights.

While health campaigners have expressed their 'delight' with the move, intellectual property lawyers have long been critical of any potential legislation.

Nicky Strong, a regulatory lawyer at Bond Dickinson, said: 'In spite of repeated warnings from industry experts, this vote shows that the government remains committed to pushing ahead with the introduction of plain packaging for tobacco products.

'Similar legislation was implemented in Australia in December 2012 and passed in Ireland earlier this month. In both of these cases, strong legal challenges continue to be made, particularly focusing on the restriction of intellectual property. Concerns have also been raised about the impact that the introduction of plain packaging would have on the counterfeit products market, lowering the barriers to entry, and yet little appears to have been done to address this very real concern.'

Strong continued: 'Without firm evidence to sweeping legislative changes such as this, lawmakers will inevitably face potentially lengthy legal challenges. In this case it is widely acknowledged that the data from the Australian experiment is not yet sufficient to enable robust conclusions to be made.

'If the law makes no positive impact on smoking take-up and sees tax revenue to the Treasury fall, this will be widely judged to have been a mistake. These changes will certainly be contested and the government will have to provide the evidence that appears to be lacking at the present time.'

John van der Luit-Drummond is legal reporter for Solicitors Journal