Human rights and tobacco plain packaging in Australia1

Abstract

In December 2012 Australia became the first country to introduce laws mandating plain packaging of tobacco. The laws are based on extensive research showing that plain packaging can reduce the appeal of tobacco products and enhance the effectiveness of health warnings. Combined with taxation measures, they are a crucial part of Australia’s comprehensive tobacco control regime. This chapter considers the human rights implications of the plain-packaging laws in the context of three unsuccessful legal challenges: first, a domestic constitutional challenge which argued that the laws effected an acquisition of tobacco companies’ intellectual property rights other than on just terms; second, a challenge made under the Australia–Hong Kong Bilateral Investment Treaty; third, a WTO challenge based on alleged contravention of the TRIPS Agreement and the TBT Agreement. The chapter sets out Australia’s regulatory framework before explaining how the laws were challenged and why those challenges failed. It then situates this in a broader context by considering the implications for freedom of expression, the right to health and the right to property.