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New Zealand: Draft Regulations on Plain Packaging of Cigarettes Released

(June 2, 2016) On May 31, 2016, the New Zealand Ministry of Health released draft regulations that would implement the Smoke-Free Environments (Tobacco Plain Packaging) Amendment Bill, which is currently being considered by the Parliament.  (Standardised Tobacco Products and Packaging Draft Regulations, Ministry of Health website (May 31, 2016); Smoke-Free Environments (Tobacco Plain Packaging) Amendment Bill, Government Bill 186-2 (as reported from the Health Committee), New Zealand legislation website.)  The Ministry is seeking feedback from the public on the proposed requirements for standardized tobacco products and packages set forth in the draft regulations.  This includes standardized cigarette packaging, which the bill previously referred to as “plain” packaging.  (Ministry of Health, Standardised Tobacco Products and Packaging Draft Regulations: Consultation Document (Consultation Document) 2 (May 2016).)

Current Requirements

The current regulations, which came into force in 2008, require that 30% of the front and 90% of the back of cigarette packs be covered by graphic health warnings.  The packs must also display the Quitline” logo and phone number and other information about quitting smoking.  (Graphic Health Warnings on Tobacco, Ministry of Health website (last reviewed May 14, 2014); Current Warnings on Cigarette Packets, Ministry of Health website (last reviewed May 15, 2014); Smoke-Free Environments Regulations 2007, New Zealand Legislation website.)

Proposed Rules

In April 2012, the government agreed “in principle” to introduce a plain packaging regime, depending on the outcome of public consultation.  After considering the results of the consultation process, the government decided in February 2013 to develop the relevant legislation.  The amendment bill was subsequently introduced in December 2013.  (Plain Packaging, Ministry of Health website (last reviewed Aug. 15, 2014); Smoke-Free Environments (Tobacco Plain Packaging) Amendment Bill, New Zealand Parliament website (last visited May 31, 2016); Kelly Buchanan, New Zealand: Legislation Requiring Plain Packaging for Tobacco Products to Be Developed, GLOBAL LEGAL MONITOR (Apr. 23, 2012).)

The main features of the bill and draft regulations are:

  • standardising the size and appearance of tobacco products and packages to make them less appealing and to make the graphic warnings on the packs larger and more effective
  • allowing a brand name and certain other manufacturer information to be printed on the pack, but with tight controls (e.g., over the typeface, font size, colour and position)
  • prohibiting the use of tobacco company branding imagery and all other marketing devices on tobacco product packaging and on tobacco products themselves.  (Consultation Document, supra, at 1.) 

The draft regulations contain the requirements for the shape, dimensions, and features of cigarette packs.  (Smoke-Free Environments (Standardisation of Tobacco Packaging and Tobacco Products) Regulations – Draft for Consultation, Ministry of Health website (May 31, 2016), reg 23.)  Any required warnings would need to cover 75% of the front of the pack and 90% of the back.  (Id. reg 24.)  Brand names and variant names would be required to meet certain specifications regarding size, color, and placement.  (Id. reg 27.)

Other matters specified in the draft regulations include:

  • the color and smell of packaged tobacco (id. regs 7 & 8);
  • the text and warning requirements for tobacco packages (id. regs 9-11);
  • other required features and restrictions related to tobacco packaging and wrappers (id. regs 12-19);
  • the permissible dimensions and features of cigarettes (id. regs 20-21);
  • a restriction on the number of cigarettes that can be contained in a pack, being 20 or 25 (id. reg 22);
  • the weight, dimensions, and features of loose tobacco packs (id. regs 29-33);
  • a requirement that cigars be sold only in a single tube or in packs of 5 or 10 (id. reg 34); and
  • required features and restrictions on cigar packs and tubes (id. regs 35-40).

Developments in Australia

The consideration of introducing plain packaging in New Zealand followed the passage of legislation in Australia in 2011, which came into effect in December 2012, requiring that cigarettes be contained in olive green packets that have no logo, brand imagery, or promotional text.  (Tobacco Plain Packaging Act 2011 (Cth) & Tobacco Plain Packaging Regulations 2011 (Cth), both available at Federal Register of Legislation website.)  In 2012, the Australian legislation was upheld by the High Court of Australia in a constitutional challenge brought by four tobacco companies.  (Kelly Buchanan, Australia: Plain Packaging Law Upheld by High Court, GLOBAL LEGAL MONITOR (Aug. 16, 2012).)  In addition, an arbitral tribunal ruled in December 2015, in an investor-state claim brought by a tobacco company against Australia, that it did not have jurisdiction to hear the claim and that there had been an abuse of process in how the claim was brought.  (Tobacco Plain Packaging – Investor-State Arbitration, Attorney-General’s Department website (last visited May 31, 2016).)  Further claims before the World Trade Organization’s dispute settlement body, brought by five countries, are still in progress.  (Id.)

New Tobacco Packaging Legislation in Europe

The United Kingdom, Ireland, and France have also enacted plain packaging legislation.  (The Standardised Packaging of Tobacco Products Regulations 2015, LEGISLATION.GOV.UK; Public Health (Standardised Packaging of Tobacco) Act 2015eISB [electronic Ireland Statute Book] website; France Votes for Plain Cigarette Packaging from 2016, GUARDIAN (Dec. 17, 2015) & Nicolas Boring, France: Legislation Requiring Plain Packaging for Cigarettes to Be Developed, GLOBAL LEGAL MONITOR (Oct. 8, 2014).)  In May 2016, the High Court of Justice ruled against four tobacco companies in a challenge to the UK regulations, allowing the regulations to come into effect on May 20, 2016.  (Tobacco Laws: Bid to Overturn Packaging Rules Dismissed, BBC NEWS (May 19, 2016).)

A European Union directive containing standardized requirements for health warnings on cigarette packets, which also permits member states to introduce more stringent plain packaging requirements, was upheld by the European Court of Justice in early May 2016.  The directive became applicable to EU member states on May 20, 2016.  (Tobacco: Product Regulation, European Commission website (last visited May 31, 2016); Pia Oppel & Martinne Geller, EU’s Highest Court Upholds Restrictive New Law on Cigarettes, REUTERS (May 4, 2016).)

Additional International Developments

Other countries that have indicated that they are considering introducing plain packaging laws include Canada, India, Malaysia, Norway, Turkey, and South Africa.  (Kristy Kirkup, Ottawa’s Plan for Plain Tobacco Packaging Could Ignite Legal Showdown, STAR (May 30, 2016); Bismah Malik, India May Adopt Plain Packaging for Tobacco Products; Industry Despises the Proposal, INTERNATIONAL BUSINESS TIMES (May 31, 2016); Gov’t Plans to Introduce Plain Packaging for Tobacco, FREE MALAYSIA TODAY (Feb. 24, 2016); Press Release, Ministry of Health and Care Services [Norway], Towards a Tobacco-Free Generation (May 31, 2016); Plain Packaging, More Bans Mulled to Curb Smoking, DAILY SABAH (Apr. 16, 2016); SA Set to Join Global Plain Packaging Trend, NEWS24 (May 26, 2016).)

On World No Tobacco Day, May 31, 2016, the World Health Organization (WHO) called on countries to “get ready for plain (standardized) packaging of tobacco products.”  (Press Release, WHO, World No Tobacco Day 2016: Get Ready for Plain Packaging (May 31, 2016).)