The Perils of Plain Packaging

It is possible to deduce, without any doubt whatsoever, one of two things about Prime Minister Rudd’s recent proposal to impose the world’s most draconican restrictions on tobacco products through “plain packaging”. Either a)Kevin Rudd doesn’t bother to read evidence and advice submitted to him or b)he reads it, and just doesn’t care. Either prospect demonstrates a very dangerous character trait from a Head of Government. The end result? A bill to the taxpayers of up to $3.4 billion dollars, for a policy that won’t even work.

That plain packaging is a blatant violation of intellectual property rights, of numerous treaties Australia has signed, as well as of international law in general, is not in doubt. So why has Prime Minister Rudd done this? Well, it is clear that Kevin Rudd is on the nose. In the last week he has jettisoned the job-killing ETS, scrapped the disgraced home insulation scheme, and withdrawn from debating Tony Abbott. The fact that he is desperately trying to create a diversion is without question, banking that it’s enough to change the topic from his deceit and cowardice, and talk instead of his  being “tough” and “bold”.” In many ways such behaviour is on par for Kevin Rudd’s Labor. What makes this case more problematic than most, however, is the severe flow-on effects this proposal will have.

But first, let us look at Kevin Rudd’s justification: that it will reduce smoking rates. A nice soundbite in a press conference, sure, but is it actually true? Even if we ignore the extreme nanny-state authoritarian implications of this policy, will it actually do what it claims?

The answer is an unambiguous no. There is no credible evidence that plain packaging will reduce smoking. None. Zero. Zip. Zilch. This is a fantasy made up by Kevin Rudd to justify this proposal. Nothing more. The reason for this is two-fold. Firstly, with cigarette advertising already banned, plain packaging will remove the only method of brand distinction available. As a result, brands will have only one thing to compete on: price. So they’ll drop prices. The result could, paradoxically, be an increase in smoking rates.

Secondly, this will create black market in cigarettes. Trademarks are the strongest protection possible against counterfeiting, and when you abolish them, a black market will invariable arise. It is already possible to buy a carton of cigarettes on the internet in for as little as $15, and this will doubtlessly increase. Indeed, this is already happening all over Eastern Europe, where trademark protection is minimal. And whilst some people may this this a minor issue, people die as a result of the illegal cigarette trade just as they do as a result of drug and human trafficking, and tobacco smuggling has also been found to directly finance terrorism.

Not only will this utterly fail in terms of its aims, however, the negative consequences will be disastrous to our economy, and our international standing.

As I have written previously, 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. Yet plain packaging legislation 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.

Tobacco companies have created significant intellectual property rights through their trademarks, as demonstrated in the significant degree of ‘brand loyalty’ in the market, and 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, the government – literally – intends to steal their intellectual property. This 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 honor or respect intellectual property rights. And this doesn’t even begin to note how important trademarks are to prevent counterfeiting.

Yet this is not only morally bankrupt, it is also illegal. The Paris Convention, the Agreement on Trade-Related Aspects of Intellectual Property Rights, and the U.S-Australia Free Trade agreement clearly prohibit such conduct. There can be no question of this, which is why companies have the right to sue to recoup their lost investment.

The most galling situation about this is that there is currently a Senate Inquiry into plain packaging, set to report later this year. If Kevin Rudd had a shred of integrity, he would have waited till it released its report. However, in what can only be described as a cheap media stunt, he decided to announce it anyway. This is just madness. And will cost the Australian taxpayer, who are already suffering the burden of record spending, and a future of outrageous interest rate payments due to this, billions.

Yesterday, I was on the 2GB Afternoon Show discussing this with Chris, which you can listen into here. Alternatively, if you wish to read a more in-depth analysis of the legal issues surrounding this matter, you can read the Senate Submission I authored for the Property Rights Alliance here.

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5 Responses to “The Perils of Plain Packaging”

  1. Ben Says:

    Nice piece. Thanks for pissing off Rudd this week too!

  2. Ken Robson Says:

    Tim, I’ll give you a bit of free advice,which is worth exactly what you paid for it. 😛
    I listened to the first few seconds of the podcast then turned it off. I knew I would agree with the ideas you were selling, I wanted to know if you could sell them and I wasn’t impressed. The following should not be taken as a personal attack, but as constructive criticism, as I think you can do better next time.

    You have a great voice for blogging. If you are going to be a guest on a talk back station again, I suggest you slow down and lower your voice. You came across as strident, talking fast and in a high pitch. Just to Godwinize this discussion, we all know who talked stridently and in a high pitch. :p

    Listen to the host, listen for the host. He was already making your talking points, there was no need to try to get them out when he had started speaking again. It would have been better to shut up instantly and let him continue.
    Listen to the hosts tone and pace. His voice is deeper than yours and slower. It projects gravitas.

    John Laws, who I considered to be one of the most amoral wastes of oxygen to ever pollute our airwaves had this down pat and had a huge following as a result.He projected authority, when all he really did was pander to peoples fears and prejudices. His tricks were a deeper voice and clear enunciation with pauses to allow people to absorb his idea and accept his authority.

    Try for the same, remember you are not talking to a legal community, you are talking to the host and through him the listeners at the other end of the radio. It is more of a conversation than a 30 second door stop where talking points rule, but it is still an appeal to peoples prejudices.

    In a two to five minute interview you will not sell most people on the specifics of an idea, what you have to do is sell yourself. If people think you are someone they can agree with and you appeal to their prejudices, then they are more likely to agree with your idea.

    I would not have mentioned intellectual property at the start. Most people don’t give a rats as they don’t benefit from it personally and many people are violating it on a regular basis through illegal downloading. Instead I would have called it a violation of international law that will cost taxpayers billions in damages, said it slowly and clearly, with my tone implying contempt for the idiots that would put us at risk. That is a sound bite that appeals to the prejudices of the left and the right and hits the money button on the head.

    You may need to play the talking over the host game if the host is obviously hostile, but in this case the host was on your side. Listen to the host and play the game accordingly, but even then you need to project yourself as an authority, as you will need to override the authority the host already has with his listeners.

    I’m a shooter and I’ve been involved in the gun lobby off and on in OZ for the last 20 years. Many, if not the majority of Australians agreed with John Howard’s seizures of private property. I’ve never been able to convince a fence sitter that he was wrong to do so on the basis of property rights or self defense.
    But point out that Howard cut the amount spent on the handgun buyback from the states hospital budget and that most of my friends took the trade in money and then went and bought new guns and people start to think it was not such a great idea. I refer to it as the new guns for old program, paid with hospital money. All true and suddenly the idea is distasteful to the average punter. It’s easier then to invite them out to try shooting, as they are now rejecting, at least to some degree, the anti-gun propaganda.

    I’m not suggesting you should invite people out to try smoking 😛 But you are going to be encountering the same propaganda if you want to protect the property rights of tobacco companies and the freedom of tobacco users. Professor Simon Chapman, the Chair of Anti-gun Propaganda at the University of Sydney is also a founder of BUGAUP, the anti tobacco advertising campaign.

    They had a slow start back in the 1970s and 80s, defacing tobacco bill boards across Sydney, with slogans that made people reject the advertising message. They have been quite successful over the years though.

  3. Jake the Muss Says:

    By stating that you only listened to a few seconds before turning it off, you undermine the quality of your advice. If you are not exagerrating, your analysis is limited in worth. If you are exagerrating, you have done yourself a disservice.

    Admitting that you have never been able to convince someone about guns based on property rights and self defence in your over 20 years also weakens your stature as someone with authority on rhetoric and persuasion. I am 26, and I can think of at least a handful of people with whom I have achieved conversion on the basis of property rights and self defence (these were not prepackaged libertarians either).

    Your farts are positively ghoulish.

  4. Jake the Muss Says:

    And Hitler was probably the most successful public speaker of the 20th Century.

    You’re whole post is literally retarded. There are some good points of course but even a spastic (and I use it in the proper medical sense) can randomly get a ball into a basket with enough jitters.

  5. Ben Says:

    I think Tim Andrews did an excellent job on radio within a short space of time. There was nothing wrong with his voice (although the line seemed a little bad at times). After a long day’s work in Washington (note the time differences Ken!) I’d be happy to pack as many punches as he did. But you didn’t listen to the whole podcast, so maybe that’s why you see things differently.

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