Relationship with the Tobacco Industry

LALIVE has worked for Philip Morris International (PMI).³⁴

2010-2016: Represented Tobacco Company in Lawsuit Against Uruguay

In 2010, LALIVE was one of three law firms that represented PMI in its lawsuit against the government of Uruguay for allegedly breaching the 1991 Switzerland-Uruguay Bilateral Investment Treaty by introducing tobacco policies affecting tobacco packaging and trademarks.³⁵ LALIVE laywers who worked on the case included Veijo Heiskanen, Franz Stirnimann, and Samuel Moss.⁶ The case was dismissed in 2016.⁵

• For more information on this case, visit our page on Philip Morris vs the Government of Uruguay.

2009: Prepared Report Arguing Against Tobacco Plain Packaging

In July 2009, two years before Australia became the first country to introduce the mandatory requirement for the plain packaging of tobacco products, PMI commissioned LALIVE to prepare a report summarising alleged legal concerns with this tobacco policy. The result was a report titled ‘Why Plain Packaging is in Violation of WTO Members’ International Obligations under TRIPS and the Paris Convention”,⁴ which claimed that plain packaging was a severe breach of intellectual property (IP) rights, and warned that those countries imposing this measure would expose themselves to World Trade Organisation (WTO) dispute settlement proceedings.
LALIVE’s report was used by PMI to undermine legitimate independent evidence on plain packaging and lobby decision makers in the Netherlands⁷⁸, Australia, and the the UK against plain packaging. The report was also cited by other tobacco industry-funded research on plain packaging, including a paper written by law firm Bird and Bird LLP.⁹
LALIVE’s report was one of many third-party reports opposing plain packaging. Specifically it was used to voice one of the tobacco industry’s main arguments against plain packaging – that the policy breached IP rights.

• Evidence that debunks the tobacco industry’s argument that the plain packaging policy breaches IP right, can be found on the page Countering Industry Arguments Against Plain Packaging: It Breaches Intellectual Property Rights.

Other Affiliations

UNITAR

In 2012, Corporate Europe Observatory (CEO) criticised LALIVE for making money by pitting corporations against governments, whilst at the same time running e-learning courses on investment arbitration for UNITAR, the United Nations Institute for Training and Research.¹⁰ In September/October 2016, LALIVE and UNITAR ran the course ‘Introduction to Investment Arbitration’.¹¹

TobaccoTactics Resources

• Philip Morris International
• Philip Morris vs the Government of Uruguay
• Third Party Techniques
• Countering Industry Arugments Against Plain Packaging: It Breaches Intellectual Property Rights
• Plain Packaging in the UK: Tobacco Industry Funded Research, Expert Opinion and Public Relations
• Australia: Funding Think Tanks and Hiring Independent Experts
• Bird and Bird LLP

Relevant Link

LALIVE’s website

References

The post LALIVE appeared first on TobaccoTactics.

The UK’s 2011 decision to consider introducing plain tobacco packaging precipitated a lengthy and hotly contested public and political debate which lasted until the policy’s implementation in May 2016.
Research from the Tobacco Control Research Group published in BMJ Open in 2016 investigated which organisations opposed plain packaging in the three years around the 2012 consultation: 2011-2013.
The research asked who are these organisations, what sector are they from, are they linked to ‘big tobacco’ and what kinds of actions did they take to oppose the policy’s introduction? The research also asked what can be learned from this case study about tobacco companies’ attempts to overcome Article 5.3 of the Framework Convention for Tobacco Control (FCTC). This article requires governments to “protect” tobacco control policies “from commercial and other vested interests of the tobacco industry.”

Research Findings: Opposition links to global tobacco companies

Setting aside tobacco and tobacco packaging manufacturers, the study identified 109 organisations which opposed, or helped oppose, plain packaging in the UK between 2011 and 2013. The study found that:

• Three quarters of opposition organisations (n=82, listed in Table 1, colour-coded) had financial relationships with one or more of British American Tobacco (BAT), Imperial Tobacco, Japan Tobacco International (JTI) and Philip Morris International (PMI). Ten had core or campaign funding, 30 had tobacco company members or had received tobacco company donations, and 42 had tobacco company clients.

– Of these, 43 actively opposed the policy themselves and rarely declared a conflict of interest or any association with tobacco companies when undertaking opposition activities;

– 39 facilitated tobacco companies’ opposition activities – for example, explicitly lobbying on their behalf or producing research for them.

• Between them, the 82 organisations:

– Undertook 60% of the 404 opposition activities identified in the study, including 88% of research activities and 78% of public communications; and

– Backed up tobacco companies’ extensive lobbying activities via correspondence and meetings with government officials and ministers.

• Tobacco industry-funded campaigns also generated 98% of opposition postcard and petition submissions to the UK’s 2012 consultation
• In these activities, opposition organisations replicated and promoted tobacco companies’ main arguments against plain packaging – intellectual property, evidence, smuggling, the nanny state and costs to businesses.
• Organisations which actively opposed plain packaging rarely reported any relationship with tobacco companies transparently. Of 150 public communications activities undertaken by those organisations, less than one in five acknowledged the link. In contrast, research consultancies and university academics commissioned by tobacco companies to facilitate opposition were almost always transparent in reporting that relationship; and yet, active organisations who promoted tobacco industry commissioned research in lobbying correspondence and press releases frequently failed to report its funding source.

Lessons for Policy

Opposition organisations’ high prevalence of financial links with tobacco companies and accompanying low levels of transparency created a misleading impression of diverse and widespread opposition to plain packaging. This opposition posed a risk to plain packaging in the UK and, ultimately, is highly likely to have played a part in delaying implementation of the policy between 2011 and 2016.
Countries which are party to the FCTC should strengthen their implementation of Article 5.3 by systematically requiring conflict of interest declarations from all organisations participating in political debates on tobacco control. This key measure will reduce the opportunity of tobacco companies to use their resource advantage to fund third party opposition to tobacco control policies.

Funding sources for the research

This research was funded by Cancer Research UK and the UK Centre for Tobacco and Alcohol Studies.

Table 1 – 82 organisations with financial links to global tobacco companies who contributed to opposing plain packaging in the UK 2011-13

Colour code: Tobacco company members or have received tobacco company donations; Tobacco company clients; Core or campaign funding.
Information on organisations’ lobbying, research, public communications and mass recruitment activities undertaken to oppose plain packaging can be accessed by clicking on the headers of the table.

TobaccoTactics Resources

• Plain Packaging in the UK
• Tobacco Company Opposition
• Tobacco Industry Built Alliances
• Tobacco Industry Funded Research, Expert Opinion and Public Relations
• Tobacco Industry Funded Third Party Campaigns

TCRG Research

• For a summary of other relevant peer-reviewed research, see : Evidence on Plain Packaging
• Standardised tobacco packaging: a health policy case study of corporate conflict expansion and adaptation, J. L. Hatchard, G. J. Fooks, A. B. Gilmore, BMJ Open 2016;6:e012634 doi:10.1136/bmjopen-2016-012634
• ‘It will harm business and increase illicit trade’: an evaluation of the relevance, quality and transparency of evidence submitted by transnational tobacco companies to the UK consultation on standardised packaging 2012, K. A. Evans-Reeves, J. L. Hatchard, A. B. Gilmore, 2015, Tobacco Control;24(e2):e168-e177
• International trade law, plain packaging and tobacco industry political activity: the Trans-Pacific Partnership, G. J. Fooks, A. B. Gilmore, 2014, Tobacco Control;23(1):e1, doi:10.1136/tobaccocontrol-2012-050869
• A critical evaluation of the volume, relevance and quality of evidence submitted by the tobacco industry to oppose standardised packaging of tobacco products, J. L. Hatchard, G. J. Fooks, K. A. Evans-Reeves, S. Ulucanlar, A. B. Gilmore, 2014, BMJ Open;4(2):e003757
• Representation and Misrepresentation of Scientific Evidence in Contemporary Tobacco Regulation: A Review of Tobacco Industry Submissions to the UK Government Consultation on Standardised Packaging, S. Ulucanlar, G. J. Fooks, J. L. Hatchard, A. B. Gilmore, 2014, PLOS Medicine;11(3):e1001629
• How do corporations use evidence in public health policy making? The case of standardised tobacco packaging, J. L. Hatchard, K. A. Evans-Reeves, S. Ulucanlar, G. J. Fooks, A. B. Gilmore, 2013, Lancet;382(s3):S42

References

The post Plain Packaging in the UK: TCRG Research on Policy Opposition 2011-2013 appeared first on TobaccoTactics.

Relationship with the Tobacco Industry

In 2014, Felula consulted for Philip Morris International (PMI) on the EU Tobacco Products Directive Revision.¹²⁶

TobaccoTactics Resources

• Philip Morris
• EU Tobacco Products Directive Revision

References

The post Felula appeared first on TobaccoTactics.

Working for the Tobacco Industry

An article in The Independent in September 2011 revealed that Philip Morris International (PMI) had used the services of Clifford Chance in September 2009 to make an anonymous Freedom of Information (FOI) request on PMI’s behalf. PMI was seeking to force Stirling University to reveal confidential details of its research involving thousands of children aged between 11 and 16 about their attitudes towards smoking and cigarette packaging.¹²⁹
It was also reported that whilst lodging the FOI request, Clifford Chance had attempted to keep the identity of its client confidential.¹³⁰ Under the Scottish Freedom of Information Act a third party must name the client it is working on behalf of, in this case PMI.
Previously secret internal tobacco industry documents suggest that Clifford Chance has acted as a long-standing legal consultant to the industry since the mid-1970s, and that clients included Philip Morris,¹³¹ the Tobacco Advisory Council¹³² and British American Tobacco. ¹³³
Furthermore, Clifford Chance was one of the signatories to the 1988 “Joint Legal/Profession Privileged Defence Agreement”, an agreement between tobacco industry lawyers to cooperate and share information to prepare and defend any product liability cases against a tobacco company.¹³⁴

References

The post Clifford Chance appeared first on TobaccoTactics.

Bird & Bird LLP is an international commercial law firm with offices in Europe, the Middle East and Asia, as well as close ties with firms in other parts of the world. According to its website, the company employs 1100 lawyers in 28 offices.¹³⁷

Tobacco Industry Links

In 2011 Bird & Bird included Philip Morris International (PMI) among their clients, providing expert legal advice to the company on plain packaging legislation (see below).

Bird & Bird and Plain Packaging

Philip Morris International Consult Bird & Bird

The UK Government indicated in March 2011 that it intended to consult on plain tobacco packaging. In light of this, in September 2011, PMI commissioned Bird & Bird to produce a paper which analysed the policy of plain tobacco packaging ‘with a view to the United Kingdom’s obligations under international trademark law’.¹³⁸ The expressed purpose of the report was for PMI to share it with ‘external stakeholders’.
In the report, Bird & Bird’s conclusion was that:

“Our assessment is that plain packaging would violate certain trademark provisions in the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) and the Paris Convention for the Protection of Industrial Property. This would put the United Kingdom in breach of its international treaty obligations, exposing it to dispute resolution proceedings and sanctions within the framework of the World Trade Organisation (WTO).”¹³⁸

Bird & Bird defined trademarks as ‘wordmarks’ and ‘logos, devices, colours, combinations of colours and shapes’. Using PMI’s Marlboro ‘rooftop’ branding as an example, they explain the importance of these trademarks to the public (see Image 1).¹³⁸
The report further emphasises that: “A trade mark is also a guarantee of quality so a customer will always know that that he will getting a consistent high quality product when he buys a pack of Marlboro cigarettes.”
The bones of Bird and Bird’s argument as presented in their advice to PMI is that a trademark confers a positive right to its owner, meaning that they have the right to use it. By contravening this right they claim that plain packaging renders trademarks ‘meaningless’. Specifically, Bird and Bird claim that plain packaging violates Articles 15(4) and 20 of the TRIPs Agreement¹³⁹, and Article 7 of the Paris Convention.¹⁴⁰

PMI Use Bird & Bird Report to Lobby UK Intellectual Property Office

On 25 June 2012, part way through the 2012 UK consultation on plain packs, PMI emailed officials at the Intellectual Property Office (IPO) and appended the Bird & Bird report. The email followed a meeting with the IPO the previous week where PMI had taken the opportunity to “discuss the current consultation on plain/standardised packaging of tobacco products. We appreciated the time to discuss the various considerations from a trade, legal and illicit trade perspective.” ¹⁴¹ A follow up internal IPO email indicates that the Bird and Bird paper was read by an IPO official – the email refers to Bird & Bird’s conclusions regarding plain packaging being in contravention of international agreements – and suggests forwarding the document to the Department of Health.¹⁴²

Bird & Bird Publish Further Research on Plain Packaging

In 2012, the year after Bird & Bird produced their report for PMI, Phillip Johnson, of Bird & Bird, published a paper on plain packaging in the journal European Intellectual Property Review. The paper was entitled ‘Trade marks without a brand: the proposals on “plain packaging” of tobacco products’.¹⁴³
The paper cites other tobacco industry legal reports: Daniel Gervais’ report for Japan Tobacco International ¹⁴⁴ and Lalive’s report for PMI.¹⁴⁵ It was also critical of Andrew Mitchell and Tania Voon’s work on plain packaging which favours the public health case supportive of the policy.¹⁴⁶
Johnson’s paper concluded that plain packaging was likely to “offend international laws”: specifically TRIPS¹³⁹ and Paris¹⁴⁰ and went on to suggest that a plain packaging law for cigarettes would have wider ramifications for trademark law:

“The outcome of the debate, however, will extend far beyond the tobacco industry as it will lead to authoritative interpretations of numerous provisions in intellectual property treaties; accordingly, what is decided my fundamentally affect the future of trade mark law.”

The paper included a statement regarding PMI’s connection with the underlying work:

“This paper is based on research conducted by the author together with Bird and Bird LLP on behalf of Philip Morris International in relation to potential plain packaging law proposals. However, no payment was received for writing this article and the views reflected herein are those of the author and not necessarily those of Philip Morris International.”

Bird & Bird Partner Publishes Opinion Pieces on Plain Packs

At the end of 2011, Katharine Stephens, Partner at Bird & Bird LLP, published an article in ITMA Review: The Journal of the Institute of Trademark Attorneys (ITMA). (Image 2)¹⁴⁷ Stephens, who acknowledges the preceding work for PMI¹³⁸ concludes that:

“…if the UK Government were to propose plain packaging for cigarettes, there would be a very considerable fight over the trade mark aspects of such proposals. The tobacco companies’ position would be that the imposition of plain packaging measures would put the UK in breach of its international obligations; their arguments would appear to be compelling.”

As well as arguing the tobacco industry were likely to win on plain packs, the article also raised the familiar industry spectre of the ‘slippery slope’:

“However, I will allow myself one question of a general nature: if cigarettes are today’s target, what will be tomorrow’s? Will another Government want to bring in a similar measure to ban the use of trade marks on alcoholic drinks or fatty foods?”

In Spring 2013, Stephens published a second article in ITMA Review. (Image 3)¹⁴⁸ This article also took the view that, despite the defeat of the tobacco industry in an Australian Court, plain packaging was unlikely to be successful in the UK. Again, the article acknowledged previous work for PMI:

“While this article is based on research conducted for Philip Morris International, the opinions expressed are the author’s own.”

ITMA (since 2016 renamed as CITMA – The Chartered Institute of Trade Mark Attorneys) were mentioned in PMI’s leaked anti-plain packaging “Action Plan” as a way to engage with the Intellectual Property Office on plain packs. ITMA were also identified by PMI as media messengers.

Countering the Rights Argument

The positive rights argument has been disputed by other legal experts, including Andrew Mitchell,¹⁴⁹ and Mark Davison.^150151152153
The rights argument was ultimately rejected by the Australian High Court,¹⁵⁴ the UK High Court¹⁵⁵ and the UK Court of Appeal,¹⁵⁶ who agreed with the UK Government that trade marks only confer negative rights – meaning that owners merely have the right to prevent others from using them: “In my judgment the Regulations amount to a control of use, not an expropriation of property.” ¹⁵⁷

TobaccoTactics Resources

UK

• Plain Packaging in the UK
• Tobacco Company Opposition
• Tobacco Industry Funded Research, Expert Opinion and Public Relations
• Tobacco Industry Built Alliances

Australia

• Plain Packaging in Australia
• Trademark Claims
• Challenging Legislation

TCRG Research

• For summaries of relevant peer-reviewed research, see Tobacco Control Research Group: Evidence on Plain Packaging and Plain Packaging in the UK: TCRG Research on Policy Opposition 2011-2013
• Standardised tobacco packaging: a health policy case study of corporate conflict expansion and adaptation, J. L. Hatchard, G. J. Fooks, A.B. Gilmore, BMJ Open, 2016;6:e012634 doi:10.1136/bmjopen-2016-012634

References

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