In this letter, published in the Law Society Gazette, QMUL's Jonathan Griffiths challenges "undue pessimism" about the UK’s imminent legislation on plain packaging.
23 February 2015
Richard Taylor is unduly pessimistic about the UK’s imminent legislation on standardised packaging for tobacco products. He suggests that the government will be taking a ‘massive gamble’, because the tobacco industry will challenge the uncompensated regulation of their ‘brands’ as a violation of the property right protected under the European Union’s Charter of Fundamental Rights (article 17).
The industry will undoubtedly challenge the legislation. It has limitless resources and grimly fights every legal measure intended to reduce the impact of smoking on human health. However, there is no reason at all to believe that its arguments will succeed in this instance. The jurisprudence of the Luxembourg and Strasbourg courts indicates that the government is on safe ground.
Within the analytical structure applied to article 17, standardised packaging legislation will, at worst, be regarded as a ‘regulation’ of the use of the tobacco companies’ trade signs rather than as a ‘deprivation’ of their intellectual property rights. As such, it will be lawful, as long as it secures a ‘fair balance’ between property and competing interests.
There is every reason to suppose that this balance has been achieved. The European courts grant a broad ‘margin of appreciation’ to states when they interfere with property rights. They also accord a high value to measures designed to preserve human life and health, and are reluctant to interfere with democratic decisions on delicate questions of social policy, particularly when those decisions are based on complex assessments of scientific evidence.
Furthermore, while compensation may be relevant in considering the proportionality of an interference with property rights, it is by no means always required. Understandably, any court will be reluctant to compensate tobacco companies for the loss of their ability to employ brand advertising to attract new customers to their product.
Previous attempts to argue that general public health prohibitions violate the European property right without the payment of full compensation have not been successful. The right protected by article 17 of the charter and article 1 of the First Protocol to the European Convention is a social right rather an absolute guarantee of despotic dominion.
The tobacco industry must certainly be aware of the weaknesses of its article 17 claim. Nevertheless, it seems to hope that fear of the alleged consequences of a violation of the charter will sap the will of lawmakers and, at the very least, delay the introduction of standardised packaging.
It is important that this spurious claim is challenged rather than recycled.
Jonathan Griffiths specialises in intellectual property law (particularly copyright law) and information law.
He has published widely on comparative copyright law and on the relationship between intellectual property and fundamental rights. His recent work includes 'Dematerialisation, pragmatism and the European copyright revolution',  Oxford Journal of Legal Studies, 'Pre-empting conflict – a re-examination of the public interest defence in United Kingdom copyright law',  Legal Studies 76 and 'Star Industrial Co Ltd v Yap Kwee Kor – the end of goodwill in the tort of passing off' in Landmark Cases in Property Law, S Douglas, R Hickey & E Waring eds (Hart Publishing, 2015, forthcoming). He is co-editor of Concepts of Property in Intellectual Property Law (Cambridge University Press, 2013).
He is currently working on projects on the Court of Justice of the European Union’s development of copyright law and on plain packaging legislation and the concept of expropriation. He is a member of the advisory board of the Nottingham Law Journal and is on the editorial board of The Journal of Media Law. He is an international contributing editor of the Media and Arts Law Review.
At Queen Mary, he teaches intellectual property law, the law of copyright & designs and international and comparative copyright law. He is co-Director of the School of Law’s LLM Programme.
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