Tobacco companies threaten legal action over English plain packaging

Some of the world’s biggest tobacco companies have vowed to challenge a proposal to introduce plain packaging for cigarettes in England, which was passed by the UK’s House of Commons on Wednesday (March 11).

Philip Morris International, Imperial Tobacco Group, British American Tobacco and have all said they will take legal action if the House of Lords, the upper chamber of the UK parliament, finally approves the bill as law.

If approved, all cigarette packaging will have to be in a ‘dull brown’ colour and the name of the brand will have to be in a standardised typeface.

The law would not apply to Scotland, Wales and Northern Ireland.

James Barge, corporate affairs director for Phillip Morris, reportedly said: “The decision by the UK government to arbitrarily ban the use of tobacco-related trademarks is an irrational and unnecessary attack on private property. Following the decision, we are prepared to protect our rights and to seek fair compensation for the value of our property.”

In a blog post, published on March 11 on the Imperial Tobacco website, Axel Gietz, director of group corporate affairs, wrote: “We have a fundamental right to differentiate our brands from those of our competitors and, should plain packaging pass into law, we would regrettably be left with no choice but to defend our legal rights in court.”

In a separate statement, Jerome Abelman, corporate and regulatory affairs director at British American Tobacco, said: “This legislation is a case of the UK government taking property from a UK business without paying for it. That is illegal under both UK and European law.

“Legal action is not something we want to undertake—but the UK government has left us with no other choice,” he added.

Daniel Torras, managing director of Japan Tobacco International (JTI) UK, criticised the government for “using the general election as the finishing line” and said it has “hurried this policy along, stifling debate among Members of parliament and giving little opportunity for opposing views to be aired”.

In response to the legal threat, a spokesperson for the department of health told WIPR that the "government has given careful consideration to all legal aspects of the policy" and it "intends to defend the policy robustly".

Tristan Sherliker, associate at law firm EIP, has voiced concerns about the validity of the law.

He said: "Tobacco companies will be specifically prevented from using their brand. This is a contradiction with trademark law, which says that trademark rights will be lost if the brand is not used properly.

“The government is effectively stubbing out tobacco brands," he added.

If the plain packaging bill for cigarettes becomes law, the UK would be the second country in the EU to approve such legislation, after Ireland approved a similar law earlier this month.

But Ireland’s law has been subject to a legal challenge from JTI Ireland, the Irish branch of JTI.

JTI Ireland claimed the bill should not have passed while the Court of Justice of the European Union (CJEU) considers a case referred to it by the English High Court. The High Court had granted Philip Morris permission to challenge the validity of the EU’s Tobacco Products Directive, which allows member states to introduce plain packaging laws for cigarettes in “duly justified circumstances”.

The CJEU has yet to make a decision on the case.