Article Text

Download PDFPDF

Containing diffusion: the tobacco industry’s multipronged trade strategy to block tobacco standardised packaging
  1. Eric Crosbie1,
  2. Robert Eckford2,
  3. Stella Bialous1,3
  1. 1 Center for Tobacco Control Research and Education, University of California, San Francisco, California, USA
  2. 2 International Legal Consortium, Campaign for Tobacco Free Kids, Washington, DC, USA
  3. 3 School of Nursing, University of California, San Francisco, California, USA
  1. Correspondence to Eric Crosbie, Center for Tobacco Control Research and Education, University of California, San Francisco, CA 94131, USA; eric.crosbie{at}ucsf.edu

Abstract

Objective To analyse the tobacco industry’s strategy of using trade and investment agreements to prevent the global diffusion of standardised packaging (SP) of tobacco products.

Methods Review of tobacco industry documents, relevant government documents and media items. The data were triangulated and thematically analysed.

Results Internal tobacco industry documents reveal that during the early 1990s, tobacco companies developed a multipronged trade strategy to prevent the global diffusion of progressive tobacco packaging and labelling proposals, including SP. This strategy consisted of (1) framing the health issue in terms of trade and investment, (2) detailing alleged legal violations concerning trade barriers, intellectual property and investment rights, (3) threatening legal suits and reputational damage, and (4) garnering third-party support. These efforts helped delay SP until 2010 when Australia became the first country to reintroduce SP proposals, followed by governments in the UK and New Zealand in 2012, Ireland in 2013 and France in 2014. Review of government documents and media sources in each of the five countries indicate the industry continues to employ this multipronged strategy throughout the SP policy’s progression. Although this strategy is tailored towards each domestic context, the overall tobacco industry’s trade strategy remains consistently focused on shifting the attention away from public health and towards the realm of trade and investment with more corporate-friendly allies.

Conclusion Governments seeking to implement SP need to be prepared to resist and counter the industry’s multipronged trade strategy by avoiding trade diversions, exposing false industry legal and reputational claims, and monitoring third-party support.

  • packaging and labelling
  • public policy
  • tobacco industry
  • tobacco industry documents
View Full Text

Statistics from Altmetric.com

Introduction

The WHO Framework Convention on Tobacco Control (FCTC), the first and only international health treaty, provides a legal framework to assist governments in reducing tobacco consumption.1 Articles 11 and 13 implementation guidelines recommend "aim(ing) to cover as much of the principle display areas as possible" and that governments adopt plain packaging (or standardised packaging (SP)) along with pictorial health warning labels (HWLs) covering 50% or more of the tobacco package.2 SP measures remove promotional elements of tobacco packs by requiring a dull (usually green/brown) colour on all surfaces apart from the HWL with the only trademarks permitted being the brand name in a standard typeface (figure 1). A growing body of research demonstrates that SP is effective at reducing the appeal of tobacco packs, and increases the salience and noticeability of larger, pictorial HWLs.3–7 The implementation of pictorial HWLs and SP have significantly reduced tobacco consumption and youth smoking initiation rates as well as lowered government health expenditures and tobacco industry sales.8–10 Since the entry of the FCTC in 2005, pictorial HWLs have been implemented at an exponential rate, but the global diffusion of pictorial HWLs covering more than 50% of the package, and more importantly SP, have spread at a slower pace.11

Figure 1

Sample of tobacco standardised packaging.

The literature on SP has identified this slow diffusion has been primarily due to the opposition of the tobacco companies, which have centred around four main arguments claiming that SP (1) lacks sufficient evidence to demonstrate that it will work,12 (2) would increase illicit tobacco trade,13 14 (3) would create unnecessary problems for retailers14 15 and (4) would violate domestic laws and international treaties governing trade, intellectual property (eg, trademarks, patents, copyright) and investment.16 17

The fourth argument incorporates various international elements as tobacco companies have aggressively threatened governments with lawsuits claiming that SP would violate various trade and investment agreements.18–20 For decades, these legal threats appeared to have created a chilling effect21 as governments either withdrew, weakened or delayed implementation of SP due in part to fears over potential costly legal battles with the industry.17 Despite several legal opinions,22 23 court rulings24 25 and the tobacco industry’s own internal legal advice17 26 that pictorial HWLs and SP do not violate these agreements, tobacco companies continue to publicly threaten governments with domestic and international lawsuits.

Discussions for SP began in the mid-late 1980s in Canada, New Zealand and Australia, which led to legislative proposals in Canada and Australia in 1994. These efforts were defeated in 1995 due in part to legal concerns created by tobacco companies and the push for SP appeared to fade away over the next 15 years. Instead, governments incrementally adopted stronger textual HWLs throughout the 1990s and then pictorial HWLs throughout the 2000s.11 Momentum for SP resurfaced again in 2010 when the Australian government announced plans to adopt SP.15 This analysis, built on two previous studies analysing internal tobacco industry documents to reveal opposition to SP,17 26 examines the development of the industry’s sophisticated strategy of using trade and investment agreements (hereinafter ‘trade strategy’) to block and delay SP during the 1990s and how this strategy was deployed in various contexts since the reintroduction of SP in Australia in 2010.

Methods

Between September and December 2015, we searched tobacco industry documents in the University of California San Francisco’s Truth Tobacco Industry Documents Library (https://www.industrydocumentslibrary.ucsf.edu/tobacco/) using standard snowball search methods.27 Initial search terms included ‘plain packaging’, ‘standardised packaging’, ‘international trade’ and ‘trademark’. This led to a specific focus on industry documents dated between 1993 and 1995, closely connected individual (eg, John Luik) and third-party (eg, International Chamber of Commerce) participation and a concentration on specific international treaties, including the Paris Agreement and World Trade Organization. A total of 200 relevant documents were found. At the time of completing the collection of research data for this study (September 2016), five countries (Australia, New Zealand, UK, Ireland and France) had either enacted SP laws or were sufficiently progressed in legislative proposals to allow meaningful research into the issues. Thus, between May and September 2016, we reviewed government documents including reports, committee hearings and stakeholder submissions in each country, Australia (http://www.aph.gov.au/), New Zealand (https://www.parliament.nz/en/), the UK (https://www.parliament.uk/), Ireland (http://www.oireachtas.ie/parliament/) and France (https://www.senat.fr/lng/en/). We also reviewed media sources including press releases, media statements and news reports in Google using a snowball search of similar key terms. Finland, Hungary and Slovenia, other governments that have enacted SP as of March 2018, were excluded due to lack of significant SP legislative progression by September 2016. There are no known government proposals for SP between 1995 and 2007. Therefore, the results section examines tobacco industry internal planning during the 1990s to highlight the development of the industry’s multipronged trade strategy to oppose SP and then applies these findings to analyse industry public actions against SP proposals since 2010.

Results

Development of the industry’s multipronged trade strategy

For decades, tobacco companies have been concerned about the diffusion of progressive tobacco packaging and labelling laws.28 In 1985, Philip Morris International (PMI) internally discussed the potential spread of tobacco packaging and labelling laws stating that “a sneeze in one country today causes international pneumonia tomorrow”,29 and by 1989 considered this progress a “crisis”.30 In 1992, British American Tobacco (BAT) was concerned that SP “could spread rapidly to the rest of the world with serious commercial consequences”,31 and by 1993 considered it “the biggest battle to be fought by the industry”.32

In response, the major tobacco companies at the time (PMI, BAT, Imperial Tobacco, Rothmans International, RJ Reynolds and Reemtsma & Gallaher) officially formed a ‘Plain Pack Group’ in November 1993 to develop a coordinated plan to prevent the global diffusion of SP.17 26 This global plan included a multipronged trade strategy that consisted of (1) framing the issue in terms of trade and investment (instead of health), (2) detailing alleged legal violations concerning trade barriers, intellectual property and investment rights, (3) threatening legal suits and reputational damage, and (4) garnering third-party support.

(1) Framing the issue in terms of trade and investment

Tobacco industry internal planning (1990s)

Initial discussions between the major tobacco companies centred on how to shift the narrative of SP away from public health, a common tobacco industry strategy.33 34 In 1993, BAT proposed to the other tobacco companies that SP “should not be contested as a health issue” but “should be treated as expropriation of Intellectual Property and contested politically on that basis”,35 (table 1). By focusing on intellectual property, the industry stood “a better chance of setting their own agenda”, which would “confine the argumentation to political, economic, international trade, and intellectual property issues”.35 Following internal discussions, tobacco companies implemented this strategy through written submissions to SP proposals in Canada and Australia.36

Table 1

Tobacco industry multipronged trade threat strategy against standardised packaging

Broadening the issue as an attack on all businesses

Tobacco companies recognised that by framing the issue as primarily concerning intellectual property and trade, the proposals would be viewed as an attack on all business, so the companies sought to “use those international laws which do exist not only for tobacco products but wherever multi-national products are marketed”.32 During a Plain Pack Group meeting in November 1993, they planned arguments on how SP “would establish dangerous precedents that could affect hundreds of other products and services”.37 In December 1993, Rothmans proposed to push this idea on the agenda of the World Intellectual Property Organization, a United Nations agency that promotes intellectual property protection. Rothmans proposed hosting a meeting which would “help to context the issue as a problem that other industries also face so as to eliminate the perception of tobacco industry isolation”.38 Following the meeting, tobacco companies began incorporating the issue of trademark infringement under ’slippery slope' arguments,39 40 that is, if the policy is allowed for tobacco then governments will apply it to other "unhealthy" traded products.

Tobacco industry public actions (2010–2016)

Since 2010, the main global tobacco companies, PMI, BAT, Imperial Tobacco Brands (formerly Imperial Tobacco until February 2016) and Japan Tobacco International (JTI), have continued to frame SP proposals as an attack on trademarks and foreign investment in each of the five countries included in this analysis (Australia, New Zealand, UK, Ireland and France). Tobacco companies have deployed this strategy by issuing press releases,41–43 running media campaigns,44 45 participating in news events and interviews,46–50 testifying during parliamentary hearings51–53 and issuing submissions to government opposing SP.54–64 Framing SP consisted of key phrases, including "intellectual property overridden by government policy",65 "deprives trademarks of their very substance"61 and "a barrier to trade".59

Tobacco companies concentrated on the broader impact of SP and potentially future trademark violations for other businesses claiming that SP would set a "dangerous precedent" in violating investors’ rights and that soon other industries would be targeted,54–64 part of the tobacco companies’ broader slippery slope arguments evoking government over-regulation (eg, nanny state arguments).66 67 Tobacco-sponsored media campaigns featured themes with catch phrases such as "what company would stand for this" in Australia,44 "I don’t mind if alcohol is next" in New Zealand45 and "tobacco first, what next?" in the UK, Ireland and France (figure 2). Although similar, each campaign included tailored messaging for each country. In France, Imperial Brands’ campaign focused on the dangers of potentially plain wine bottles. BAT, in Australia and New Zealand, used plain alcohol bottles and JTI in the UK and Ireland used plain food and beverage products (eg, plain chocolate, fries and soda cans).

Figure 2

Tobacco industry media campaigns against standardised packaging in Australia, New Zealand, UK, Ireland and France. BAT, British American Tobacco; JTI, Japan Tobacco International.

(2) Detailing alleged legal violations concerning trade barriers, intellectual property and investment rights

Tobacco industry internal planning (1990s)

In the 1990s, tobacco companies sought legal advice on international treaties to protect their trademarks. BAT proposed to “take an international approach to brand protection” and that “all this groundwork should be aimed to ensure a legal framework is in place to defeat any further moves, anywhere”.32 BAT initially suggested that “the Paris Convention, provisions within GATT (General Agreement on Tariffs and Trade) and the European Community would seem a good starting point for finding out what existing protection there is for our brands under these conventions”.32 Initial discussions focused on verifying if SP constituted a barrier to trade among countries. These inquiries began with the GATT, the major trading system from 1945 to 1994, and then the World Trade Organization (WTO) Agreements (including the updated GATT, the Technical Barriers to Trade (TBT) Agreement and the Trade Related Aspects of Intellectual Property (TRIPS) Agreement). The industry viewed these agreements as a legal weapon to block or delay proposals, stating, “legal defenses could tie up legislators in litigation over a long period”.32

In March 1994, the Plain Pack Group agreed to review “international conventions affording protection of trade marks”,68 to develop “good arguments as to why minimal intellectual property and trademark infringement is the only reasonable policy”.38 This included attempting to understand “what are the conditions under which what the intellectual property people call a ‘justified taking’ can occur?”.38 In other words, if governments prohibited tobacco companies from using their trademarks on the package for public health reasons, would that be considered a justified reason? As pointed out by other studies,17 26 the industry solicited several internal legal opinions but found "little joy"69 in these international treaties as they were told governments had the sovereign right to implement SP so long as it did not interfere with the registration of trademarks.

Tobacco industry public actions (2010–2016)

Ignoring unfavourable internal legal advice in the 1990s,17 26 tobacco companies continue to claim in each country that SP proposals would (1) constitute a barrier to trade under the WTO TBT and GATT, (2) violate the ’rights of use' of trademarks under various domestic laws and the WTO TRIPS agreement, and (3) amount to expropriation of their trademark property and not represent fair and equitable treatment under various free trade agreements (FTAs) and bilateral investment treaties (BITs).

In each national context, tobacco companies used these arguments in public statements and in the media,46–50 through third parties (see below) and in submissions to government.54–64 The tobacco companies’ public position in each country was that SP would result in the "destruction", "acquisition", "expropriation" or "deprivation" of their trademark property rights.54 70–72 BAT’s submission to New Zealand’s parliamentary committee is typical to how these arguments were framed in each country:

Plain Packaging would breach New Zealand’s legal obligations under Investment Treaties and the WTO agreements… Plain Packaging prevents the use of validly registered trade marks.59

The tobacco companies argued that SP breached obligations under the WTO TRIPS in each country and specifically violated the European Charter of Fundamental Rights in France,73 Ireland56 and the UK,25 an Australia–Hong Kong BIT in Australia74 and a New Zealand–China FTA in New Zealand.57–59

(3) Threatening legal suits and reputational damage

Tobacco industry internal planning (1990s)

To increase pressure on governments, tobacco companies discussed the importance of conveying their trademark value and the potential negative impacts of denying their trademark usage. In March 1994, slides from a Plain Pack Group meeting stated that removing their trademarks “would result in significant devaluation in the value of companies and huge losses for shareholders”.75 Recognising trademark value, the tobacco companies began planning how SP would be an "unlawful expropriation" of their trademark rights and that compensation claims could amount to "hundreds of millions of dollars".76 77 Tobacco companies discussed framing SP to show a disregard for trademark rights that would "damage the reputation of governments" and significantly impact "new investment decisions" across all business.78 They suggested to governments that proceeding with SP would be "unlikely to enhance its image as a host for investment".79

Tobacco industry public actions (2010–2016)

Tobacco companies claimed that SP would (1) incur considerable legal costs and (2) result in direct compensation to the tobacco companies. Tobacco companies emphasised that SP would expose each country to domestic and international legal challenges that would cost "millions in legal fees" and procedural costs. They also stressed that losing in arbitration would result in "billions in compensation".71 80 Both of these claims stressed the cost to the taxpayers. For example, in Australia, BAT’s media campaign headings included "Will plain packaging cost taxpayers billions of dollars?" and "Don’t let the taxpayer foot the bill".44

The threats of international legal suit and compensation were magnified by the actual challenges brought against Australia’s SP law. PMI challenged the law through an Australia–Hong Kong BIT,81 and BAT and PMI provided legal and financial support to at least three of the five countries (Ukraine, Honduras and Dominican Republic) that challenged the law through the WTO dispute resolution process.82 83 While this increased the pressure on Australia, these suits were intended to, and had the effect of, slowing the diffusion of SP globally by creating a legal fulcrum to caution others before proceeding. Tobacco companies continuously urged the other countries to adopt a "wait and see" approach until these rulings were finalised,58 59 62 63 71 knowing that these international lawsuits typically take many years to resolve. The WTO case remains ongoing after more than 5 years. It took more than 5 years for the BIT challenge to be dismissed without proceeding to a merits hearing, which would have taken additional years to conclude.

Tobacco companies also threatened each government that SP would severely damage their country’s international reputation in terms of foreign trade and investment. In each country, tobacco companies emphasised that SP was "disturbing", "detrimental", "destructive", "damaging" and would "adversely impact" each government’s reputation with foreign investors and trading partners.54–56 58–61 In particular, tobacco companies argued that SP would deter all business sectors from investing in these countries and disregard established intellectual property norms, particularly trademarks, which are "considered the cornerstone of corporate identity and consumer information".60 Tobacco companies argued that each country risked facing "adverse consequences" with trading partners as SP would diminish each country’s "international standing" and reduce their negotiating ability in trade negotiations as well as potentially lead to "retaliatory" countermeasures in the WTO.54 56 58–61

These threats were tailored for each country. In Ireland, JTI argued how SP would "cause anxiety amongst multinationals who are considering investing there"55 and Philip Morris asked whether Ireland would "be happy if other countries required plain packaging for alcohol"65 (a major Irish export). In New Zealand, BAT emphasised that SP "would compromise its credibility" to oppose similar public health measures when they "affect New Zealand’s exports".59 Imperial also highlighted an Australian/New Zealand WTO dispute involving apples in which New Zealand successfully challenged Australia’s unreasonable import restrictions to argue that SP would also create an unnecessary barrier to trade for its trading partners.57 In Australia, BAT argued it would be hypocritical for the government to object to Thailand’s HWLs on alcoholic beverages while simultaneously advocating for tobacco SP.60

(4) Garnering third-party support

Tobacco industry internal planning (1990s)

In 1993, tobacco companies recommended developing alliances with other multinational industries,84 recruiting support from the alcohol and pharmaceutical industries, and manufacturers in general, who "may be affected by packaging suggestions",32 35 and "may be vulnerable to packaging warnings which expropriate their intellectual property".85 During a March 1994 Plain Pack Group meeting, the objective was "to heighten awareness of the issue"75 and contact potential allies including "pharmaceuticals, alcohol, cosmetics, Unilever, Colgate, Pepsi and Coca-Cola".84 Similar to finding "little joy" with protections in international treaties, tobacco companies reported "other industry groupings little support" in opposing SP.69

Tobacco companies also attempted to acquire support from business groups, intellectual property and trademark associations, including the International Chamber of Commerce (ICC) and the International Trademark Association (INTA).69 84 86 ICC and INTA strongly supported the tobacco companies in opposing SP in Australia and to a larger extent in Canada.87–89 This included lobbying policy-makers, writing letters to top government officials, speaking in the media to help frame SP as a trade and investment issue, and emphasising potential legal and reputational costs of SP.

In addition, tobacco companies contracted legal experts to support their arguments.84 In March 1994, the Plain Pack Group agreed to recruit supportive legal experts to create an open debate on the legality of SP, which included "intellectual property rights specialists" with favourable understandings of international law to the tobacco companies that "could form the basis for papers to be presented" to policy-makers.32 The tobacco companies financed a book, which was referred to as a "plain packs Bible"90 that was used as a credible and citable resource to influence academic debates and referred to policy-makers when debating SP proposals.

Tobacco industry public actions (2010–2016)

Similar to the 1990s, tobacco companies have received little support publicly from other industries in opposing tobacco SP. In fact, the Winemakers Federation of Australia was quick to reject any link between alcohol and tobacco, stating, “Our industry does not like any association between tobacco and alcohol”.91 Although not complaining about the possibility of plain olive packs, the Australian Olive Association also rejected any association to tobacco complaining about the characterisation of SP being wrapped in ’olive green' as “to associate any food with cigarettes is a thoughtless thing to do”.92

However, tobacco companies received active support from various business associations, which again included the ICC and INTA as well as other longtime industry allies (table 2). These business associations commented in the media,93–99 and issued submissions to government in all five countries,100–112 echoing the industry’s trade arguments.

Table 2

Standardised packaging (SP) political process, tobacco company market share and third-party opposition to SP in Australia, New Zealand, UK, Ireland and France

Tobacco companies also received active support from various legal experts and think tanks113 114 (table 2), including assistance from longtime industry allies such as the Washington Legal Foundation.115 These groups attempted to create a legal debate around SP116 and validate the industry’s position against SP by producing position papers and policy briefs.117

Discussion

During the early 1990s, tobacco companies developed a multipronged trade strategy to prevent the diffusion of SP, which they continue to employ to contain the spread of SP since 2010.

As with courtesy of choice,118–120 youth smoking prevention121–123 and corporate social responsibility programmes,10 124 125 the industry’s multipronged trade strategy consists of similar tactics tailored for each country.

The strategy has had a clear ‘regulatory chilling effect’ in New Zealand where SP legislation was explicitly delayed for almost 3 years pending the outcome of Australia’s legal disputes.19 There is evidence that tobacco companies also employed their trade strategy in Georgia, Hungary, Norway, Slovenia and Thailand, which have each enacted initial SP legislation (although delays to progress in Georgia are reported to be due to industry interference,126 and in Thailand the Ministry of Commerce has raised trade concerns and it appears the government is waiting until the results of the WTO dispute with Australia before moving forward).127 In Turkey and Malaysia, ministers had announced strong intentions to proceed with SP but then shortly afterwards made statements delaying or cancelling the proposals citing industry arguments on intellectual property or trade.128 129 Other governments that plan to implement SP should expect, and be prepared to counter, a similar multipronged trade strategy as part of the industry’s opposition.

Policy implications

Avoiding trade and investment framing diversions

Governments should be weary of accepting arguments that SP has significant international trade and investment implications—whether those arguments are delivered by the tobacco companies or third-party organisations. In Australia20 and Ireland,130 key government officials consistently framed SP as a public health and protection of children issue to address the "unique problem of tobacco", and were undeterred by the industry’s threats of trade and investment lawsuits. This contributed to relatively swift passage of SP laws in these countries. With positive rulings in the Australian and Uruguay investment arbitrations,20 131 and the WTO ruling expected in 2018, governments can have confidence to publicly and internally resist the industry’s attempts to frame SP as a trade and investment issue.

Exposing exaggerated industry legal and reputational claims

Despite continued industry legal threats, the Australian24 and UK High Courts25 (and Court of Appeal) and the French Constitutional Council and Council of State73 each upheld SP laws, concluding that restricting trademark usage was justified, proportionate and consistent with WTO rules, and that SP was not an expropriation of their intellectual property rights. In December 2015, an international investment tribunal dismissed Philip Morris’ investment treaty claim against Australia’s SP law, without hearing the merits of the case, because Philip Morris had undergone corporate restructuring for the sole purpose of bringing the arbitration, which was held to be an abuse of process.132 Philip Morris’ 2010 investment treaty challenge against Uruguay’s packaging and labelling law was also based on similar intellectual property, expropriation of trademark property and trade law arguments, and the tribunal dismissed the claim in full using strong terms applicable to SP and to wider public health policies.131 On 5 May 2017, news sources reported that the WTO dispute panel’s interim report upheld the Australian SP law.133 Although the final ruling was expected in 2017, as of April 2018, it still has not been made public.

Before these rulings, civil society groups in Australia recruited legal experts to expose these exaggerated legal claims to policy-makers20 whereas in New Zealand this was less evident.19 These rulings now provide greater legal clarity surrounding a country’s sovereign right to implement progressive tobacco packaging and labelling regulations. Given the favourable legal rulings to date, governments should ignore any "wait and see" arguments by the industry and their allies.

Tobacco companies, and not taxpayers, have been ordered to pay the legal fees for the majority of their lost challenges against SP. Legal fees for investment arbitration can range from approximately US$4–10 million134; however, PMI had to compensate Uruguay US$7 million for its lost BIT challenge131 and has been ordered to pay Australia’s fees (reported to be in the tens of millions of US dollars).135 Furthermore, the public health benefits of SP outweigh these costs as SP in Australia is estimated to save the government US$273 million over 10 years in health expenditures.8

Contrary to industry claims about reputational harm, the International Property Rights Index scores increased in all the countries that enacted SP.136 Furthermore, these countries have been recognised by the international public health community and international agencies including WHO as leaders in public health.

Monitoring third-party support

The industry’s trade strategy also consists of support from international business groups and trademark and intellectual property organisations including most notably the U.S. and International Chambers of Commerce, which aggressively oppose SP in several countries.137 138 Given the industry’s low credibility, increasingly these international groups are becoming the mouthpiece to frame and oppose SP, especially to government departments of foreign affairs and trade where they can be highly influential stakeholders.139 Thus, continued monitoring and revealing their link to tobacco companies like in Australia and Ireland is needed to avoid any potential roadblocks during the policy-making process.

Limitations

It is possible that governments introduced proposals for SP between 1995 and 2007, but we could not find relevant data regarding this. This study focused primarily on the development and enactment process of SP and not the implementation stage, in which the multitrade strategy may include an additional series of tobacco industry attacks.

Conclusion

Governments seeking to implement SP must be prepared to resist and counter the tobacco industry’s well-known multipronged trade strategy by avoiding trade diversions, exposing false industry legal and reputational claims, and monitoring third-party support.

What this paper adds

  • Tobacco companies have threatened and challenged governments over their tobacco packaging and labelling laws with international trade and investment lawsuits since the 1980s.

  • Tobacco companies continue to legally threaten governments that propose adopting tobacco standardised packaging (SP), but to date there has been no review or comparative analysis of how the tobacco industry employs these threats in various contexts.

  • This is the first study that uses internal tobacco industry documents, government documents and media sources to reveal the tobacco companies’ multipronged trade strategy to challenge SP, which consists of (1) framing the health issue in terms of trade and investment (instead of health), (2) detailing alleged legal violations concerning trade barriers, intellectual property and investment rights, (3) threatening legal suits and reputational damage, and (4) garnering third-party support.

  • Governments seeking to adopt progressive tobacco packaging and labelling policies, including SP, should anticipate and expose the industry’s trade strategy to avoid delays and help stimulate the diffusion of SP globally.

Acknowledgments

We thank Emmanuelle Béguinot, Figen Eker and Fenton Howell for the information provided for this study.

References

View Abstract

Footnotes

  • Contributors EC, with guidance from RE, and SB conceptualised the study. EC collected the raw data and prepared the first and subsequent drafts of the manuscript. RE and SB contributed to revisions of the paper.

  • Funding This work was supported by the National Cancer Institute Training Grant 2T32 CA113710-11 and Tobacco-Related Disease Research Program (University of California) Mackay California-Pacific Rim Tobacco Policy Scholar Award 25MT-0033 and Dissertation Research Award 24DT-0003.

  • Disclaimer The funding agencies played no role in the conduct of the research or the preparation of this article.

  • Competing interests None declared.

  • Patient consent Not required.

  • Provenance and peer review Not commissioned; externally peer reviewed.

Request Permissions

If you wish to reuse any or all of this article please use the link below which will take you to the Copyright Clearance Center’s RightsLink service. You will be able to get a quick price and instant permission to reuse the content in many different ways.