Turkey takes up Plain Packaging, Reversing Earlier Statements

By David Cohen

Turkey is among the latest of countries to take up the plain packaging cause of the World Health Organization (WHO). The WHO is fully committed to promoting plain packaging as a way of reducing tobacco-related deaths and illnesses around the world. And several countries have followed their lead. 

However, there are major problems with this method of discouraging tobacco use. Chief among them is that it doesn’t work and it robs companies of their intellectual property rights which comes with huge unintended consequences.  

It’s not hard to understand that illegitimate businesses will find it much easier to fool consumers with counterfeits when all packs are devoid of trademarks and forced to have the same appearance.

Intellectual property rights are human rights protected under the Universal Declaration of Human Rights (UDHR). Article 17 protects the right to ownership; Article 19, the right to freedom of expression; and Article 27, the right to protection of material interests. These rights are inalienable and plain packaging is a clear violation.

Additionally, plain packaging as a policy aimed at discouraging tobacco use, has shown no evidence of success in that endeavor. According to a PRA-led global coalition letter signed by 62 think tanks and addressed to the director general of the WHO, Australia has seen “no statistically significant decline in the overall daily smoking rate between 2013 (12.8%) and 2016 (12.2%),” the first four years of the implementation of plain packaging in the country. 

Turkey initially advised the World Trade Organization as an observer of the dispute between Australia and other countries over plain packaging as an infringement of IP rights that “it is a matter of fact that "use" is an inseparable part of trademark regimes. Without use, the ultimate function of a trademark – to distinguish a product from others with an expectation for economic benefit – cannot be realized.” That was Turkey’s earlier hesitation to adopt plain packaging. Now they have apparently reversed their position.

The Dominican Republic and Honduras are appealing the WTO’s ruling, and the International Trademark Association (INTA) submitted a brief, charging that the WTO fails to understand the correlation between plain packaging and counterfeit cigarettes, as well as the negative impacts on public health associated with counterfeits. The INTA statement argues that:

By eliminating the source function served by trademarks, the TPPA measures open up the market for counterfeiters (often backed by organized crime or terrorist organizations). Those counterfeit products will likely not meet the necessary health and safety requirements for tobacco products, increasing the risk of harm to consumers.

The WTO is expected to make a final decision on the appeal within the year and will be able to review additional evidence, such as the fact that according to the most recent government data 2016 was the first year in 23 years that smoking prevalence did not drop, a measure that was predicted to increase after plain packaging. Regardless of the WTO decision, or plain packaging results, the measure remains a violation of vital trademark rights.