WTO Disputes – Tobacco Plain Packaging

Updated  September 2016

Australia — Certain Measures Concerning Trademarks, and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging (DS434) and Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging (DS435, DS441, DS458 and DS467)

Consultations with Australia in relation to Australia's tobacco plain packaging measure were requested by Ukraine (on 13 March 2012), Honduras (on 4 April 2012), Dominican Republic (on 18 July 2012), Cuba (on 3 May 2013), and Indonesia (on 20 September 2013). Consultations were held with Ukraine on 12 April 2012, Honduras on 1 May 2012, Dominican Republic on 27 September 2012, Cuba on 13 June 2013, and Indonesia on 20 October 2013.

The WTO Dispute Settlement Body (DSB) established dispute settlement panels at the requests of Ukraine (on 28 September 2012), Honduras (on 25 September 2013), Indonesia (on 26 March 2014), the Dominican Republic (on 25 April 2014), and Cuba (on 25 April 2014). A record number of WTO Members (forty one in total, including the five complainants) indicated their intention to join one or more of the disputes as third parties.

On 5 May 2014, the WTO Director-General composed the panels in each of the five tobacco disputes.  The same panelists were appointed to hear each of the disputes and the timetable for the panel proceedings was harmonised at the request of the parties, pursuant to a procedural agreement between the parties, to allow all five disputes to be heard together.

On 7 May 2014, Australia filed requests for a preliminary procedural ruling in relation to the panel requests made by four of the five complainants to resolve uncertainty as to the nature and scope of the matters and measures at issue in the dispute.  The Panel issued its rulings on 14 August 2014. 

On 13 March 2015, Australia filed its first written submission in response to the complainants' first written submissions.

On 29 May 2015, the Panel agreed to Ukraine's request to suspend its dispute settlement proceedings against Australia with a view to finding a mutually agreed solution. As Ukraine's dispute settlement proceedings were suspended for more than 12 months without further action by Ukraine, the authority for those proceedings has lapsed.

The first Panel hearing in respect of the disputes brought by the other complainants took place in Geneva from 1 to 5 June 2015.

On 16 September 2015, Australia filed its second written submission.

The second Panel hearing took place in Geneva from 28 to 30 October 2015.

On 23 March, Australia filed its integrated executive summary of its submissions. This summary comprises the last filing in the panel proceedings.

The Panel has advised that it does not expect to issue its final report to the parties until the end of 2016.

Investor-State Dispute

Philip Morris Asia challenged Australia's tobacco plain packaging legislation under the 1993 Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments (Hong Kong Agreement). This was the first investor-State dispute brought against Australia.

Further information on the investor-State dispute is available at the Australian Government Attorney-General’s website.

Constitutional challenges to tobacco plain packaging

Two challenges to the tobacco plain packaging legislation were heard by the High Court of Australia from 17–19 April 2012: British American Tobacco Australasia Limited and Ors v. Commonwealth of Australia and J T International SA v. Commonwealth of Australia.

On 15 August 2012, the High Court handed down orders for these matters, and found that the Tobacco Plain Packaging Act 2011 is not contrary to s 51(xxxi) of the Constitution. On 5 October 2012 the Court handed down its reasons for the decision. By a 6:1 majority (Heydon J in dissent) the Court held that there had been no acquisition of property that would have required provision of 'just terms' under s51(xxxi) of the Constitution.

The parties' written submissions, the full transcript of proceedings and the High Court's orders and reasons is available at the High Court of Australia.

Background – Tobacco plain packaging

Australia's tobacco plain packaging legislation came into full effect on 1 December 2012. The legislation prohibits logos, brand imagery, colours and promotional text other than brand and product names in a standard colour, position, font style and size appearing on tobacco packaging.

Tobacco plain packaging forms part of a comprehensive range of tobacco control measures to reduce the rate of smoking in Australia and is an investment in the long term health of Australians.

Further information regarding the implementation of tobacco plain packaging is available on the Australian Government Department of Health's website.

Last Updated: 1 September 2016