Indonesia, together with Cuba, Honduras and the Dominican Republic, is challenging Australia’s plain packaging measures on tobacco products at the World Trade Organization (WTO).
The first substantive hearing between the panelists, co-complainants, the respondent and more than 30 third parties took place from June 1 to 5 in Geneva in what many consider the largest dispute case held by the WTO in terms of number of parties.
At the heart of the arguments put forth by the co-complainants is that the policy violates internationally accepted obligations as provided under the Trade-Related Intellectual Property Agreement and the Agreement on Technical Barriers to Trade.
The theory of plain packaging is that by mandating the use of a uniform, ugly color and denying brand owners the use of their trademarks on their products consumers will be put off purchasing unhealthy products.
Therefore, as the logic of this theory goes, any product deemed unhealthy by the government could potentially be stripped of all branding and preferred colors.
If this is permitted under the WTO agreements, nothing will prevent the same from being applied to any other products believed to be harmful to human health.
The co-complaining countries will of course let the panelists do their work to come to a legal finding whether or not the measures adopted by Australia are indeed in breach of the existing WTO agreements.
But looking around the corner, it is surprising to learn how discussions on ways to curb so-called unhealthy products or diets have evolved in a strikingly similar way to that of tobacco products.
In May 2014, for example, the UN Special Rapporteur on the right to food, Olivier De Schutter, called for a new global agreement to regulate unhealthy diets.
He insisted that “[u]nhealthy diets are now a greater threat to global health than tobacco. Just as the world came together to regulate the risks of tobacco, a bold framework convention on adequate diets must now be agreed.”
Earlier in March 2014 the World Health Organization (WHO) launched a public consultation on its draft guidelines on sugar intake.
Further, in February 2015, The Lancet, one of the world’s oldest and best known medical journals, published a special edition on obesity prevention and called for greater government control and advocated bringing about a healthier environment through social engineering.
Similar calls have been made to curb the consumption of alcoholic beverages in countries like Ireland, Thailand, the United Kingdom and Turkey. Back in 2012, the UK Parliamentary Health Committee held an inquiry on a government proposal related to health issues, and in particular looked at plain packaging and marketing bans on alcoholic beverages.
It is interesting to note that the European Alcohol Policy Alliance, Eurocare, finds that alcohol scores worse than tobacco in terms of risk for a third person, number of persons at risk, cost to the economy and society, appeal to young people and children and social acceptance, and scores better only in terms of level of regulation.
Those are just a few examples how discussions on curbing unhealthy products have been evolving, and it can be expected that they will follow the same path as curbing the prevalence of smoking: first, mandated labeling, followed by the adoption of mandatory graphic warnings to provide illustrations to the public of the adverse impacts of the product in questions. If graphic warnings are not deemed enough, plain packaging will be seen as the next step to limiting the consumption of the product.
Interestingly, this trend does not finish with tobacco products. In addition to tobacco, there are already calls to follow the same path with a long list of other products, from infant milk formula and vegetable oils, to alcoholic beverages and products associated with higher blood pressure, obesity and diabetes.
There are a huge number of public policy priorities being considered or adopted by countries around
the world. If a plain packaging requirement with the elimination of trademarks is deemed appropriate to pursue a public health objective, it will certainly be adopted to pursue others.
This is, as shown above, not mere speculation but a clear reality. Hence, the importance of the ongoing WTO case to determine what can be done.
Like other countries, Indonesia has adopted or is considering the adoption of measures to combat unhealthy products including tobacco.
With regard to the latter, Indonesia adopts graphic health warnings on 40 percent of packs — stricter than half of the WHO Framework Convention on Tobacco Control’s signatories.
Indonesia also has stricter regulations on tobacco billboard advertising than G8 countries like Germany and the US, as well as a ban on smoking in public places. Challenging the implementation of Australia’s plain packaging measures on tobacco products is not by any means to be interpreted as Indonesia not considering tobacco smoking as harmful to human health.
Rather, Indonesia believes that the measures are more trade-restrictive than necessary to fulfill a legitimate objective.
If the WTO Dispute Panel finds that governments can justifiably implement the plain packaging measures on tobacco products, we then need to prepare for the proliferation of plain packaging measures on other products.
This could be the beginning of a slippery slope to fundamental disruption of global consumer markets with unprecedented consequences.
The writer is Indonesian ambassador with responsibility for the WTO. This is a personal opinion