It is clear that plain packaging has failed to achieve its intended outcomes, with incidence of smoking reversing its long term decline, particularly amongst women and children. Plain packaging grossly misunderstands the role of branding: while it relevant to differentiating between competing brands, it has minimal impact on smoking uptake. As such, these results were predictable – and predicted.
Plain packaging subtly encodes in law the notion that consumers who derive joy from aesthetic beauty are victims of manipulation. The unspoken message to commercial organizations is that intellectual property will be protected until it is not convenient. The longer-term consequence of the plain packaging movement are not limited to shifting public health norms, but fundamentally reshaping our concept of intellectual property rights.
While a positive right to use of intellectual property is not recognized, uncompensated prohibitions on its exercise are concerning to other intellectual property holders. Given the importance of intellectual property to trade, any moves to further restrict packaging rights should be strongly contested.
The policy is anticipated to spread across nations and product categories, increasingly quickly in a regulatory cascade. Alcohol, beverages, food products, and pharmaceuticals are already being identified by public health commentators as target industries. The escalation of plain packaging campaigns despite its failure to reduce smoking rates demonstrates the issues here are broader than simply questions of public health, and will affect numerous other industries in the near future.
Given the failure of traditional responses, a rethink of strategy to encompass a whole-of-industry approach is critical. Corporate strategies based on appeasement and concessions, and avoiding coalitions with other industries, have been demonstrated to have failed. With such a significant threat to property rights from plain packaging, it is vital that consumers, retailers, manufacturers, and representative bodies cooperate in efforts to oppose any such policies.
The Australian experience with plain packaging should be a warning to all industries and governments of the dangers in pursuing continued attacks on intellectual property. Despite the significant resources and lobbying power of the plain packaging lobby, further restrictions are not inevitable. However, to prevent the growth of plain packaging around the world, in tobacco and tin other industries, a concerted international effort to learn from the Australian experience is needed. Public education, grassroots mobilization, and industry co-operation, all effectively absent during the Australian plain packaging debate, are vital.