How Plain Tobacco Packets Violate our Rights, & Lead To A Plain Society

by on 25 February, 2010


Tim Andrews takes objection to plain packaging legislation proposed for tobacco products.

In one of the more odious pieces of legislation presented to the Australian Parliament in 2009, late last year Senator Fielding introduced a Private Members Bill entitled the Plain Tobacco Packaging (Removing Branding from Cigarette Packs) Bill 2009, a bill that seeks to amend product information standards regulations to strip brands trademarks, and logos from tobacco packaging (essentially you would only be allowed to have blank packs, with the name of the brand in small font at the bottom). It is a Bill that will do nothing to achieve its stated purpose, whilst simultaneously fundamentally attacking the very notion of property rights at the core of our economy, and violating numerous international treaties to which Australia is a party. As such, it is a Bill that should concern all on the Australian right. 

Make no mistake: this Bill, the latest attempt by the anti-tobacco lobby to strip away at the small pleasures enjoyed by smokers in a quest to ultimately make the pastime illegal, is not about providing people with information about tobacco. This is not about allowing people to make an informed decision. Rather, this is about the fact that there is a powerful lobby group in Australia who have a pathological hatred of tobacco products, and want to impose their opinion to stop everyone from smoking. It is the latest salvo by the High Priests of the Cult of Health, the brigade of paternalism, the parents of the nanny state, to ensure that every drop of individualism is gradually squeezed from our lives. That any behavior that is even mildly outside what they deem ‘acceptable’ is outlawed. There is, after all, no evidence this Bill will achieve its stated objections of reducing smoking. Rather, by stripping away trademarks – a distinctly personal way of self-identification by smokers – it is simply an attack on those they deem ‘different’.

However, my personal opinions about the motives behind this crusade aside, this Bill is problematic for a number of more serious reasons, primarily to do with the very damaging precedent it sets when it comes to intellectual property rights, and the fact that it flagrantly violates numerous international treaties that Australia has is party to.

There can be no doubt that, if enacted, the Bill would clearly violate the intellectual property rights of companies, through forbidding them from displaying their trademarks and thereby differentiating their products on the basis of said trademark.

Private property rights ought to be sacrosanct in any democratic country. The right to own and enjoy property is a fundamental part of rights of people, and indeed we consider it an extension of human rights. The protection of property, both physical and intellectual, is critical to economic development, and is the most important guarantee of freedom we have. 

Obviously, the importance of protecting property rights is not limited to merely physical property, but intellectual property rights also, and there can be no doubt that the protection of trademarks is a vital part of protecting intellectual property rights. With Australia’s present restrictions on free specch in terms of prohibiting tobacco advertising, packaging is the critical way brand information can currently be provided to consumer. Aside from pricing, therefore, it is the essential mechanism through which tobacco manufacturers can compete with each other for consumers. Tobacco companies have created significant intellectual property rights through their trademarks, as demonstrated in the significant degree of ‘brand loyalty’ in the market, and that plain packaging legislation would significantly erode the value of these property rights.

By denying tobacco companies their right to use their trademark to identify their product, this Bill strikes at the very core principles of corporate identity and consumer information that the Australian economy is based upon. As such, it not only violates the legal rights of the companies affected, but furthermore sets a very dangerous principle for the future of a government unwilling to honour or respect intellectual property rights. And this doesn’t even begin to note how important trademarks are to prevent counterfeiting! 

But this is not all. The Bill flagrantly is in breach of the Paris Convention, the WTO’s Agreement on Trade Related Aspects of Intellectual Property Rights, the agreement on Technical Barriers to Trade, and the Australia-U.S. Free Trade Agreement. For such a bill to be even considered by the Senate is simply mind-boggling. 

I have written a submission on behalf of the Property Rights Alliance, an affiliate of Americans for Tax Reform, and publishers of the International Property Rights Index (Australia’s in 8th place by the way), going through the issues this bill presents in depth. I would strongly urge everyone interested in protecting international property rights, and opposing the nanny state, to have a read (click here to download)

While  tobacco remains a legal product, the assault on the centuries-old protection of trademarks represents a very grave threat to the future of property rights, individual freedom, and freedom of speech, and as such, all of us on the right should be very scared indeed.

Because a future of bland cigarette packs is the perfect symbol for the future that big government advocates want: bland and plain. A future devoid of all danger, devoid of individuality, devoid of anything that makes life actually worth living. It is a future where we are all mindless automatons, marching in lockstep. With long, “healthy” lives, protected by the state from cradle to grave. Nurtured and subsidized, allowed to do no wrong. Existing, but not really living.

And it is a future that we on the right must fight with every fiber of our being, with every breath we have, until we can fight no more. 

You can make a submission on this bill to the Senate Committee on Community Affairs until COB Friday.

Tim Andrews is an Editor of Menzies House.

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