Cigarette Packaging, A Marketing Tool Or A Regulatory Instrument?

Introduction

Over the last several decades, there has been a strong global push towards regulating tobacco and tobacco products with the aim of reducing tobacco consumption. Beyond standardised packaging, governments are introducing complementary policies such as flavour bans, restrictions on retail displays, nicotine limits, environmental regulations and traceability systems to combat illicit trade. These initiatives are designed to curb the tobacco industry's ability to market products through visual cues or sensory appeal particularly those that attract young people and first-time smokers.

The global trends

According to the Canadian Cancer Society (CCS), as of February 2024, 42 countries and territories had implemented measures moving towards plain packaging, with 25 having adopted the measure, 3 having it in practice, and 14 in the process of implementation. The CCS report, titled "Cigarette Package Health Warnings: International Status Report", details global progress on plain packaging, ranks 211 countries and territories on the size of their health warnings on cigarette packages, and lists the 138 countries and territories that now require graphic picture warnings.

A growing number of countries are adopting plain packaging laws for tobacco products, reflecting a strong international movement aimed at reducing smoking rates and protecting public health—especially among youth. Australia led the way in 2012, and since then, nations such as France, the United Kingdom, and many others have followed suit.

As of now, 25 countries and territories have implemented plain packaging regulations, a significant increase from just 9 in 2018 and 21 in 2021. This steady rise highlights the global commitment to curb tobacco use through, amongst other, stricter packaging controls.

The goal of plain packaging is to reduce the attractiveness of tobacco products, limit misleading design cues, strengthen the impact of health warnings. Plain packaging policies are supported by the World Health Organization's Framework Convention on Tobacco Control (WHO FCTC), which encourages countries to consider removing all promotional elements from tobacco packaging. These regulations typically require:

• Standardised packaging formats
• Removal of logos, colours, and design features
• Uniform font style and size for brand names
• Prominent health warnings
• Use of unattractive colours (such as dull brown) to deter appeal

Health warnings and images, in some countries, now dominate the pack design.

The goal is to eliminate packaging as a marketing tool, enhance the visibility of health warnings, and reduce the likelihood of misleading consumers about the risks of tobacco use.
Countries that have already implemented these measures include Australia, France, the UK, Norway, Ireland, New Zealand, Saudi Arabia, Turkey, Thailand, Canada, Uruguay, Slovenia, Belgium, Israel, Singapore, the Netherlands, Denmark, Guernsey, Hungary, Jersey, and Finland. Implementation is underway or pending in Mauritius, Myanmar, Oman, and Georgia, with Myanmar introducing also a generational ban, banning public displays of tobacco consumption by consumers born after 2007. This generational ban is the first of its kind and aimed at producing Myanmar's first tobacco-free generation.

Additionally, three territories—Monaco, the Cook Islands, and Niue—have effectively adopted plain packaging by importing tobacco products from countries where such regulations are already in place.

At least 14 more countries, including South Africa, Mexico, Malaysia, Colombia, and Russia, are formally considering similar legislation, signalling that the trend is likely to continue.

Deprivation of intellectual property rights?

Following the introduction of plain packaging in Australia and the UK, litigation ensued over whether or not the plain packaging regulations were constitutional as they arguably produce, as a consequence, a deprivation of intellectual property rights that vest various branding elements, like logos. In 2012, Australia's High Court upheld the country's plain packaging laws, with the Court of Appeal of England and Wales following suit in 2015. In 2020, a challenge was bought before the World Trade Organisation ("WTO"), an international organisation that is responsible for, amongst other things, recognising and protecting intellectual property rights. The complaint targeted Australia's plain packaging legislation. The WTO Appellate Body upheld the High Court's ruling, recognising that plain packaging legislation fulfils a legitimate governmental objective and that Australia's plain packaging legislation makes a meaningful contribution toward achieving that objective. In this debate so far, the public health concerns and reduction of risk incentives have outweighed the rights of brand owners.

Plain packaging legislation has been enforced in certain jurisdictions for more than 10 years and so there is an ever-growing body of evidence that speaks to the efficacy of those measures in curbing tobacco consumption across all age groups. Depending on which side of the fence one sits, that evidence demonstrates either reduction in consumption, particularly among children, or an increase in consumption and illicit trade. South Africa may be uniquely positioned in this debate, having had a crash course on the growth of the illicit tobacco trade following the ban on tobacco sales during the early months of the Covid-19 pandemic.

The progress of South Africa's Bill

South Africa's Control of Tobacco Products and Electronic Delivery Systems Bill, 2022, is currently making its way through Parliament. With the period for public comment and participation having been completed, the Committee of Health (the "Committee") is in the process of considering the comments submitted during this process. Of particular significance is that during this process, the South African Police Service ("SAPS") and the South African Revenue Service ("SARS") were invited to address the Committee, and it appears that their purpose was to ensure that there is an understanding of the broader economic and enforcement implications of illicit trading. SARS has raised concerns over plain packaging and the unintended consequence that plain packaging could have on the illicit trade. To avoid this impact, SARS has suggested that the health imperative could be served by requiring large, visible health warnings on packaging, which would still allow for easier identification of legally regulated products.

Conclusion

In countries where plain packaging is enforced, cigarette packaging has ceased to be a marketing tool and is now a regulatory instrument. Other countries are still allowing tobacco products to have some kind of brand identity beyond the brand name in all caps, size 12 Arial font. This space is clearly dynamic and important, considering the health risks posed by tobacco consumption. In countries, like South Africa, with a burgeoning illicit trade, it will be interesting to see how these competing, and not insignificant interests, play out against one another.

From the minutes of a recent meeting, the Committee appears to have recognised that the perspective of both SAPS and SARS, as enforcement institutions, are valuable to the legislative process. While it has been posited that the illicit trade falls beyond the scope of plain packaging legislation, the Committee has recognised the need for continued parliamentary oversight of this particular issue.

Co-author
Aimee du Plessis – Candidate Attorney

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