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National kicks for touch on plain packaging

19 February 2013

For immediate release

National kicks for touch on plain packaging

‘National’s ploy to introduce the law on plain packaging of tobacco products at the end of this year, but not pass it until all the cases pending against Australia’s law are concluded, will push it well into the next parliamentary term', says Professor Jane Kelsey from the University of Auckland, who wrote an expert report on these issues in 2012.

‘By that time National will hope that no longer has to rely on the Maori Party for support and will be free to abandon the law if it wants to.’

‘Big Tobacco is notorious for using these agreements to chill government’s decisions’, Professor Kelsey said.

Philip Morris’s submission on the consultation document on plain packaging warned that New Zealand would breach the World Trade Organization’s rules on technical barriers to trade and intellectual property.

British American Tobacco NZ went further. It claimed the legislation would breach (unnamed) investment treaties, ‘entitling the companies to an arbitral award requiring New Zealand to repeal the legislation and/or pay substantial sums in compensation’.

Companies within the BATNZ group would take ‘all necessary steps’ to protect their investment under New Zealand’s investment treaties.

‘It is clear that these threats have done their job’, Professor Kelsey observed.
‘National was already reluctant to follow the lead of the Australian government, which has thumbed its nose at the industry threats and vowed to fight their cases and win.’

Australia is currently facing two disputes under international trade and investment treaties.

One in the World Trade Organisation brought by Ukraine, Honduras and the Dominic Republic and bankrolled by the tobacco industry. New Zealand has joined as a third party.

A dispute panel to hear the Ukraine case was established in September last year but no date has been publicly notified for the hearing. No panels have been constituted for the other two disputes yet. The WTO panel and appeals process can be expected to take two more years.

The second dispute brought by Philip Morris Asia against Australia under the Australia Hong Kong bilateral investment treaty is underway in Singapore. Its first procedural hearing was in July 2012.

A procedural order released in January 2013 confirmed the hearings will be closed to the public, although documents filed in the case may be released by the party that filed them, subject to requests by the other party for redactions to protect confidentiality. This process could take three, five or more years and cost many millions of dollars.

‘By that time, if the National government has its way, the Trans-Pacific Partnership Agreement will be in effect and the tobacco companies will have a whole new legal canvass on which to play’, Professor Kelsey warned.

‘In a nutshell, if this is allowed to happen we can kiss goodbye to sensible public health policies - tobacco companies will rule the day’.


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