On 7 April 2011, the Australian Commonwealth Government released an exposure draft of the Tobacco Plain Packaging Bill 2011 (“Bill”) which is described as a Bill for an Act to discourage the use of tobacco products, and for related purposes.
The Bill provides for regulations which can prescribe requirements in relation to the packaging of tobacco products and the appearance of tobacco products themselves.
“Tobacco Product” is defined as “processed tobacco, or any product that contains tobacco, that:
- is manufactured to be used for smoking, sucking, chewing or snuffing; and
- is not included in the Australian Register of Therapeutic Goods maintained under the Therapeutic Goods Act 1999.”
The kinds of “tobacco product requirements” which can be regulated are not limited in any way but can prohibit the use of any trade mark, logo, brand, business or company name, or other identifying mark, on packaging, or on tobacco products; can be in relation to the size or shape of packaging; can relate to the content of any information to be included on packaging; and can require that information of a specified kind is not to be included on packaging.
Commonwealth Health Minister Nicola Roxon has announced that the packaging will be “dark olive”, which, according to the Minister, is the least attractive colour.
Section 15 of the Bill provides some protection for trade mark owners who are prevented from use of trade marks as a result of the Bill including protection against the rejection of applications for registration of trade marks under the Trade Marks Act, 1995, revocation of the acceptance of applications, refusal to register trade marks, revocation of registrations, and removal a trade mark from the Register (such as for non-use).
The Bill sets out a number of offences for contravention of packaging requirements prescribed in the regulation including selling, importing or manufacturing non-compliant tobacco products. It is also an offence to purchase non-compliant tobacco products, although this offence does not apply to an individual who purchases the tobacco product for his or her personal use (query whether this includes buying non-compliant tobacco products for friends). The Bill includes strict liability offences and civil penalties, the latter becoming increasingly popular in Australia as civil penalties can be enforced at the lower civil standard of proof.
The exposure draft and accompanying consultation paper are available on the Commonwealth Department of Health and Aging website at www.health.gov.au. As at 8 April 2011, the Australian government’s Department of Health and Aging’s website indicates that the government will require plain packaging for tobacco products from no later than 1 July 2012.
Submissions on the Bill must be received by the Department of Health and Aging by 6pm on 6 June 2011.