Norway’s Ministry of Health and Care Services has proposed the imposition of a requirement for all tobacco products to be sold in standardized packaging, according to a World Trade Organization notification.
It has not been decided when the measure should be adopted or when it should come into force. Comments are being invited.
The TBT notification is here. It states:
Description of content: The Ministry proposes the introduction of standardised tobacco packaging in Norway. This proposal will apply to all types of tobacco products. Standardised tobacco packaging involves a uniform layout and design on all tobacco packaging, as well as a ban on manufacturers' logos, trademarks, images, colours or other forms of advertising.
Packaging shall only have one solid colour, and some of the products will be required to have specific packaging materials. Brand names and variant names, as well as manufacturer information, shall have standardised colour, placement, font and size. The Ministry also proposes standardisation of other elements such as barcodes, packing material, etc. The packaging shall retain the mandatory health warnings and other information in accordance with current legislation.
The Ministry furthermore proposes that the design of tobacco products and smoking accessories should be standardised to a certain extent, including the colour of the cigarette paper and snus portions, as well as the specification of brand names and variant names. A legal basis for standardising the packaging of tobacco surrogates is also proposed, but specific regulations are not proposed at this time. Tobacco surrogates include herbal cigarettes and herbal snus, among others.
And:
Objective and rationale, including the nature of urgent problems where applicable: The overarching vision of the National tobacco control strategy for the period 2013–2016 is a long-term goal of making Norway a tobacco free society. Despite significant progress in the area of tobacco control in Norway, smoking continues to the single largest preventable cause of premature death and poor health. Snus also has harmful effects on health, and its use has increased over the past few years, especially among young people. A significant decline in the number of tobacco users is therefore the most important measure for improving public health.
The Ministry finds it unacceptable that such a high number of children and young people begin using tobacco. If we are to achieve our goal of a tobacco-free generation, and in the long term, a tobacco-free society, it is absolutely essential to limit the appeal of tobacco products to children and young people.
The overarching objective of the proposal is to reduce the number of children and youngsters who begin smoking and using snus, in order to protect them from the harmful effects of tobacco use. More specifically the objective is to make tobacco products less appealing by limiting the advertising effect of the packaging, increasing the impact of the mandatory health warnings, as well as minimising the risk that the packaging design gives misleading information about the harmful health effects of tobacco. It is assumed that the measure will also contribute toward a moderate reduction in the use of tobacco among adults by helping people to quit smoking and using snus, and by helping to prevent relapse among those who have quit. It will also have the effect of denormalising tobacco products and tobacco use.
Research has shown that packaging design may give the false impression that tobacco products are less harmful to one's health than is actually the case, especially to young people. In the preamble of the new EU Directive, point 27 states that certain types of tobacco packaging may give the impression that the product purports benefits in terms of weight loss, sex appeal, social status, or qualities such as femininity, masculinity or elegance. The packaging is designed to make the use of tobacco appear more attractive and appealing, especially among young people, and reduces the impact of the health warnings. Furthermore, it is well known that the appearance of various brands may have some importance as identity markers. It is therefore the opinion of the Ministry that standardised appearance and design of tobacco packaging may be a useful and effective preventative measure, especially with regard to young people.
The proposal will contribute toward fulfilling Norway's obligations as a party to the FCTC.
At the link with the TBT notification, there is also a Norwegian government document entitled "Consultation on the proposal for standardised tobacco packaging and the implementation of Article 5.3 of the Framework Convention on Tobacco Control." Among other things, this document considers the consistency of the proposed legislation with various domestic and international law obligations. In this regard, it states:
3.7.4 The Norwegian Constitution and the ECHR
The Ministry has also assessed the proposal for standardised tobacco packaging in relation to the Norwegian Constitution and the European Convention on Human Rights (ECHR).
Section 97 of the Constitution ensures a certain level of protection against a retroactive effect of new legislation on established rights. It could be asserted that standardised tobacco packaging interferes with the tobacco manufacturers’ established trademark rights. A right holder must however in principle accept interference by the legislative branch. The Supreme Court has declared that it is only in cases where interference with established rights has a “clearly unreasonable or unfair” effect that interference is prohibited under Section 97 of the Constitution, cf. Case 1996 p. 1415 Borthen. Constitutional protection hinges on a balancing of the consideration for those who are affected by the interference and those societal considerations underlying the measure. It must also be considered whether the measure is necessary and justifiable in protecting the relevant interests of society. The proposal for standardised tobacco packaging is grounded in the need to protect particularly strong and legitimate societal interests of protecting public health. These provisions are introduced in an area with already extensive regulations and where further measures must be expected, and where the expectations of right holders and consideration for their needs is therefore somewhat restricted. The Ministry finds that the possible retroactive aspect of the proposed legislation is not “clearly unreasonable or unfair” and therefore not in conflict with Section 97 of the Constitution.
Section 105 of the Constitution states that a person who is forced to surrender his “property” may claim “full compensation” for the financial loss suffered as a consequence of this surrender. It is clear that the imposition of standardised tobacco packaging does not constitute a surrender of property as described in Section 105 of the Constitution, since it only entails governmental limitations on the use of the trademark.
There may be an issue of whether intellectual property rights fall within the concept of “property” in Article 1 Protocol 1 of the ECHR, which provides protection for property rights. The Ministry finds that should the proposed limitations in the use of trademarks be viewed as interference under the provisions, it would still be deemed lawful since it has a legitimate objective and fulfils the requirements of proportionality, as it does not involve a disproportionate intervention.
Section 100 of the Constitution states the right to freedom of expression. The Ministry has assessed whether standardised tobacco packaging would conflict with this provision, since it restricts tobacco manufacturers’ right to freedom of commercial expression.
Commercial expression is considered falling outside the core area of the provision on freedom of expression. In practice, the legislators may limit commercial expression if there are compelling societal interests which make this necessary. This includes the existing prohibitions on tobacco and alcohol advertising. The underlying premise is that commercial expression in the form of advertising for goods and services which have been viewed as harmful to society, does not deserve the same constitutional protection as political, religious, moral and cultural expression.
Section 100 of the Constitution, second and third paragraph, states that an assessment of the various interests is essential. The purpose of the interference must be able to justify the interference. The interests of the tobacco industry in advertising their products cannot be considered as important as the objective of reducing the use of tobacco among young people, thereby preventing adverse health effects from tobacco use. In this assessment, consideration for public health weighs more heavily than consideration for the interests of the industry in increasing its revenue from an exceptionally harmful product. The Ministry therefore finds that standardised tobacco packaging does not conflict with Section 100 of the Constitution. A similar assessment will apply under Article 10, no. 2 of the ECHR.
Those who are interested in comparative law should have a field day over the next few years analyzing the challenges to plain packaging measures under various domestic and international legal instruments.
