South Africa: Plain Packaging Debate Heats Up

Last Updated: 19 September 2014
Article by Rachel Sikwane

Most Read Contributor in South Africa, September 2016

The plain packaging debate has certainly moved up a gear. In South Africa, Professor Owen Dean of Stellenbosch University addressed an open letter to the Health Minister, Dr Aaron Motsoaledi, which was published in Business Day. In the letter, Dean called on the minister to reconsider any ideas he may have for plain packaging measures, in other words measures that place limitations on the rights of tobacco companies to display their trade marks on their products. The minister has, of course, made no secret of the fact that he favours plain packaging legislation, ever since the Australian High Court held that Australia's plain packaging legislation - which requires tobacco companies to sell their products in olive green packs, which contain graphic health warnings and the brand name (without stylisation or logo) in very small script - is not unconstitutional.

Dean concedes that Motsoaledi is quite entitled to take steps that dissuade people from smoking, but says that this does not extend to him acting unconstitutionally and depriving companies of their property rights. He also argues that plain packaging measures are bound to be ineffective.

Dean is scathing of the notion that the presence of logos on cigarette packs influences demand and is convinced that plain packaging legislation will contravene the property clause (section 25) of the Constitution. This section reads as follows: "No one may be deprived of property except in terms of a law of general application, and no law may permit arbitrary deprivation of property.' Dean's expropriation argument goes like this: 'In order to remain valid and extant, a trademark must continue to be used... Preventing a trademark from being used thus destroys that trademark and extinguishes the item of property that it constitutes.' He suggest that there will inevitably be a court challenge if legislation is introduced and he argues that there's no guarantee that South African courts will follow the approach of the Australian courts. The reason for this is that, in Australia, deprivation of property is only unconstitutional if it's accompanied by an acquisition of that property by another party (like the state), something that's not required in South Africa.

It's hard-hitting stuff from beginning to end. Dean starts off by accusing the minister of having 'declared war on trademarks, especially logos, as being tools or weapons of evil intent and effect.' And he ends by warning the minister against the 'the folly of proceeding with legislation that is unconstitutional', and urging him 'to take competent and informed legal advice' so that he can 'avoid embarrassment' and 'venturing into terrain where angels ought to fear to tread.'

No-one doubts that there will be a court challenge if plain packaging measures are introduced. But the tobacco companies will face an uphill battle. For starters, the Constitutional Court has ruled that IP rights do sometimes have to give way to other rights, such as the right of freedom of expression – I refer here to the famous case of SAB v Laugh-It-Off (Black Label v Black Labour) . We've also had the Supreme Court of Appeal rule that the legislation that prohibits tobacco adverting is lawful because it's a reasonable limitation of the right of freedom of expression. The court in that case spoke of 'powerful public health considerations' and 'international law obligations'. It referred also to the fact that other countries have 'accepted the link between advertising and consumption as incontrovertible and have imposed restrictions on the advertising and promotion of tobacco products.'

Then there'sthe argument that there's no expropriation in the case of plain packaging legislation because the Trade Marks Act provides that a trade mark registration that isn't used cannot be cancelled for non-use if the failure to use was due to factors beyond the owner's control – ' special circumstances in the trade'. And there's the fact that Louis Harms, former Deputy President of the Supreme Court of Appeal and South Africa's leading IP judge, has said that, in his view, plain packaging legislation will not contravene the property clause because it 'does not deprive the trade mark owner of any trade mark right, but only regulates or limits the exercise of that right.'

In the UK, Phillip Morris has warned that it will sue the British government for billions in compensation if it goes ahead with plain packaging (aka 'standardized packaging') legislation. The company pulled no punches when it issued this statement: 'Standardized packaging is a euphemism for government-mandated destruction of property. It is unlawful, disproportionate, and at odds with the most basic requirements of the rule of law.'

The UK trade mark professional body, the Institute of Trade Mark Attorneys (ITMA), has also entered the debate by making submissions on plain packaging to the UK government. It has pointed out that restrictions on the use of logo registrations will have implications that go beyond trade mark registrations being attacked (and possibly cancelled) for non-use. For example, a company that wants to register a trade mark must have a genuine intention to use that trade mark, something that it surely cannot have if the law prevents it from using the trade mark.

Given the money at stake here, and the fact that court proceedings are slow, this issue will be with us for many years to come.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.