There are at least five legal proceedings going on right now related to government regulation of cigarette packaging. They are based on a variety of different, but sometimes overlapping, legal claims. It's difficult to characterize some of these claims, but I am going to give it a shot:
Free Speech: Graphic Images Required on Cigarette Packages by the U.S. FDA, with litigation in U.S. court: "in R.J. Reyolds v. FDA, Judge Leon of the District of D.C. ruled that the First Amendment prohibited new FDA regulations requiring the display on all cigarette packages of large graphic images, including photos of dead bodies and diseased lungs and mouths. The court held that the regs compel speech, do not involve purely factual commercial information (which would trigger lower scrutiny), and do not survive strict scrutiny."
Takings: Plain Packaging Required by Australia, with litigation in Australian court: TOBACCO giant Philip Morris is opening a second front in its battle with the government over plain packaging. The Marlboro manufacturer will today file a High Court challenge against the controversial laws, claiming they are unconstitutional. "We believe plain packaging violates the Australian Constitution because the government is seeking to acquire our property without paying compensation," Philip Morris spokesman Chris Argent said yesterday. "The government has passed a law that acquires our valuable brands and intellectual property, despite being unable to demonstrate that it will reduce smoking and ignoring the widespread concerns raised in Australia and internationally regarding the serious adverse ramifications associated with plain packaging."
IP Protection and Trade Barriers: Plain Packaging Required by Australia, with a complaint at the WTO: Ukraine is challenging Australia's plain packaging law under the TRIPS Agreement, as well as GATT/TBT National Treatment requirements and the TBT 2.2 "necessity" provision.
Due Process and Takings: Mandatory Warning Labels and Brand Restrictions by Uruguay, with a complaint under a BIT: "The companies’ claims are based on a 1991 treaty between Switzerland and Uruguay, in which each country guaranteed certain minimum standards of treatment for the other country’s investors, and agreed to go to international arbitration over any alleged failure to live up to those commitments. The companies contend that, as a result of Uruguay’s measures, they have been deprived of fair and equitable treatment, that the value of their investments has been taken without compensation, and that the use of their investments has been unreasonably impaired—all of which are violations of the Switzerland-Uruguay treaty."
Due Process and Takings: Plain Packaging Required by Australia, with a complaint under a BIT: "plain packaging legislation breaches Article 6 of the Hong Kong-Australia BIT. Article 6 protects investments from measures by a host State that have an effect equivalent to deprivation, except under due process of law, for a public purpose related to the internal needs of the host State, on a non·discriminatory basis and against compensation"; "Neither is plain packaging legislation (and for the same reasons the GHW regulation) fair and equitable, as required by Article 2(2) of the Hong Kong-Australia BIT"; "For the same reasons, plain packaging legislation and the GHW regulation each constitute an unreasonable impairment to the management, maintenance, use, enjoyment or disposal of PM Asia's investments in Australia in breach of Article 2(2) of the BIT."
It seems to me that a discussion of all of these cases would make for a very interesting conference!
