Factasia.org is a Hong Kong based organization, founded in 2013, which promotes newer nicotine and tobacco products, including e-cigarettes (also known as electronic nicotine delivery systems, or ENDS) and heated tobacco products, and campaigns for their use in tobacco harm reduction. It is registered as a company, Fact Asia Consultants Ltd, in Hong Kong.¹²

As of October 2020, Factasia´s website stated:

“factasia.org seeks to represent the rights of adults in Asia who choose to enjoy smoking or other related forms of consumption of nicotine. factasia.org aims to protect their interests and to provide independent and unbiased data on the issues surrounding smoking – and related issues – in Asia.” ³

According to the tobacco industry publication Tobacco Reporter, Factasia.org was formed to represent the rights and interests of smokers who choose to smoke or consume tobacco, and to provide data on the issues surrounding smoking in Asia.⁴

Factasia.org receives funding from Philip Morris International, as well as the Tobacco Vapor Electronic Cigarette Association (TVECA) and other companies providing services to the tobacco industry, according to its website.⁵

However, Factasia.org states that it does not work for the tobacco industry. ⁴

Activities

Factasia.org conducts its activities under three main themes that it describes as: “consumer choice, rational debate and sensible regulation”.³ It states that “Factasia.org aims to communicate with consumers as well as politicians, legislators and appropriate law enforcement officials”.³ According to Tobacco Reporter, Factasia “aims to lobby on behalf of the millions of growers, distributors and retailers throughout the region whose livelihoods are under threat from bad legislation and excessive taxation” ⁴

Commissioned Surveys to Argue for Reduced Regulation

The organisation conducted several opinion surveys of smokers in Asia-Pacific markets through the polling company IPSOS. One survey conducted in 2015-2016 included responses from nine countries (Mecau, India, Malaysia, Singapore, Australia, Hong Kong, Taiwan, Philippines, and New Zealand) and over 4,200 smokers.⁶ This survey evaluated awareness, use and perception towards e-cigarettes. A similar survey was conducted in Hong Kong in 2018 with 1,000 respondents.⁷ Results of these surveys were presented in global pro-vaping conferences and used to develop support for reduced regulations and restrictions on e-cigarettes.⁸

In 2015, Factasia.org held an E-cigarette Symposium with speakers from the Institute of Economic Affairs (IEA). ⁹

Lobbied at COP8

Factasia has lobbied against the Conference of the Parties (COP) of WHO FCTC. Heneage Mitchell, cofounder and director of Factasia.org, was among the group who protested outside COP8 in Geneva in 2018, arguing that the WHO should accept harm reduction as a “basic human right” (Image 1).¹⁰¹¹

Heneage Mitchell was present with Martin Cullip, a pro-tobacco blogger and Simon Clark, the Director of the tobacco industry front group Forest at a COP8 side event, hosted by the tobacco industry-funded, representing the Institute of Economic Affairs. The International Network of Nicotine Consumer Organisations (INNCO) was also present, after being denied FCTC observer status. For more information see the page on INNCO.

Image 1.”Heneage Mitchell from Factasia (second from left) was part of a group protesting outside FCTC COP8 event in Geneva, 2018 (Source factasia.org)

Lobbied COP8 via Twitter

Researchers from the Tobacco Control Research Group (TCRG) analysed Twitter data to gain insights into activity of the tobacco industry and its allies, including Factasia.org, in the run up to COP8, and their attempts to influence the FCTC.¹²¹³

The researchers concluded that:

“The extensive activity by NGP advocates with links to organisations funded directly and indirectly by PMI … as well as a substantial online presence by PMI executives themselves, suggests a strategic approach by PMI to influence COP8 debates”.¹².

For more details see International Network of Nicotine Consumer Organisations (INNCO)

Factasia.org is a supporter of the “Smoke Free for Life” (SF4L) campaign, organised by Coalition of Asia Pacific Tobacco Harm Reduction Advocates (CAPHRA).See below for details.¹⁴¹⁵

Relationship with the tobacco industry

According to Factasia.org’s website, Philip Morris International and Tobacco Vapor Electronic Cigarette Association (TVECA),  an e-cigarette trade association, are among its supporters.⁵

Other supporters listed on their website, as of October 2020, were are:⁵

• Axiom Select LLC – Service provider to tobacco industry from machinery to services which include “regulatory issues, product development, harm reduction, cost / project management and sourcing.”.⁵¹⁶
• Cerulean – Provider of test and measuring equipment for the tobacco industry. As a provider, it has presented at several tobacco industry events as the Global Tobacco & Nicotine Forum, World Tobacco Middle East, Tobacco Science Research Conference, among others. ¹⁷
• Moisttech – Provider of moister & measurement control products, that provides services to the tobacco industry.
• Primary Engineering (Thailand) Ltd – Provide service & maintenance for tobacco industry equipment

As stated on the Factasia.org website, its cofounder and director Heneage Mitchell has commentated on the tobacco industry across the Asia region for over 15 years.¹⁸ His LinkedIn profile states, he was the former managing editor/co-publisher at October Multimedia from 2009-2013 and managing editor of Lockwood Publications from 2002 –2009. ¹⁹  Lockwood publications was the publisher of industry publication Tobacco Asia.²⁰.

John Boley, the other cofounder of Factasia.org was a speaker at the Global Forum on Nicotine (GFN) in 2016 and 2017. GFN is an event organised by Knowledge-Action-Change (K-A-C) which is funded by PMI-funded Foundation for a Smoke-Free World.

The panel of speakers at the Factasia.org E-cigarette Symposium 2015 included;  e-cigarette researcher Dr. Konstantinos Farsalinos, representatives of TVECA and the Asian Vape Association (AVA), and Terry Barnes representing Institute of Economic Affairs(IEA) (see image 2) ³. The IEA is a think tank which has a history of collaboration with the tobacco industry.²¹

Image 2: Factasia.org E-cigarette symposium held in Hong Kong in 2015. From Left: Ray Story (TVECA), John Boley, Dr. Konstantinos Farsalinos, Heneage Mitchelle , Nav Lalji (AVA) (Source: Factasia)

Staff

Heneage (‘H’) Mitchell and John Boley, are both founders and directors of the organisation.^{19 22}

According to his LinkedIn profile, Mitchell became Managing Director of factasia.org in October 2013, after working in journalism, publishing and other businesses, including writing on tobacco (see above for details). ¹⁹ He states that his specialities include public relations and campaign management.¹⁹ and in 2017.²³ His presentation in 2016 was titled “Developing a united front for consumers to public health authorities in Asia-Pacific – challenges and opportunities” and, in 2017, “The lexicography of harm reduction”.²⁴

Lobbying decision-makers

Collaborating with third party organizations and funding their activities in order to reach out to decision makers is one of the most common tobacco industry tactics.(See Third Party Techniques) Factasia has not been the exception, as evidenced in the promotion of  looser regulations for newer products in Australia:

Lobbied Therapeutic Goods Administration (TGA)

Regarding PMI´s IQOS, Factasia made a submission in June 2020, after the Australian medicines regulator, the TGA, made an interim decision refusing Philip Morris Ltd application to exempt its IQOS product from the Poison’s Schedule. Factasia´s submission argued that “It is unconscionable that Australia continues to ignore the evidence and is now seeking to further restrict access by adult smokers to these life-saving technologies by considering legislation to require a doctor’s prescription to purchase nicotine-containing vape products.” ²⁵ Despite intense lobbying by PMI to allow the sale of IQOS, in August 2020, the Australian government’s Therapeutic Goods Administration rejected the sale of HTPs in Australia.²⁶²⁷.

Lobbied Australian parliament:

After lobbying with CAPHRA for fewer restrictions on e-cigarettes in Australia, in summer 2020,²⁸   Factasia made a formal submission to the Australian Parliament on October 16, 2020, arguing that “The government has a unique opportunity to act for the good of its citizens by recognizing that harm reduced nicotine products save lives and benefit all Australian citizens by reducing the death and disease caused by smoking. Smokers need to be able to access the life-saving technology of harm reduced nicotine products. This should be a key part of Australia’s Tobacco Control policy”.  ²⁹ Furthermore, Factasia lobbied for newer products to be legalized in Australia and regulated differently than tobacco products. ²⁹

Partnerships

Factasia.org is associated with the Coalition of Asia Pacific Tobacco Harm Reduction Advocates (CAPHRA)²⁸  and supports its SF4L campaign.¹⁴ Heneage Mitchel was at the launch of SF4L, along with Peter Paul Dator, president of Vapers PH; Clarisse Virgino, the CAPHRA Philippine representative; and Nancy Loucas, executive director of CAPHRA (see image 3 below).^{30 15}

Image 3: (from left) Peter Paul Dator, president of Vapers PH; Clarisse Virgino, the Philippine representative to the Coalition of Asia Pacific Tobacco Harm Reduction Advocates; Nancy Loucas, executive director of CAPHRA; and Heneage Mitchell  at the Asia-wide education and information campaign #SmokeFree4Life in Poblacion, Makati City.

Relevant Link

Factasia.org

Tobacco Tactics Resources

• Global Tobacco and Nicotine Forum
• Next Generation Products
• Philip Morris International
• Lobbying Decision Makers

TCRG Research

Robertson, A. Joshi, T. Legg T, et al., Exploring the Twitter activity around the eighth meeting of the Conference of the Parties to the WHO Framework Convention on Tobacco Control, Tobacco Control Published Online First: 11 November 2020, doi: 10.1136/tobaccocontrol-2020-055889

Stopping Tobacco Organizations and Products, Tweetable Influence: The Tobacco Industry’s Attempt to Engage in COP8, STOP blog, 12 November 2020, available from: exposetobacco.org

References

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In 2017 and 2018 Ogilvy Public Relations Worldwide provided PR services to the Foundation for a Smoke-Free World (FSFW), an ostensibly independent scientific organisation aimed at ‘accelerating the end of smoking’ which is solely funded by Philip Morris International:³⁴³⁵ Initially worth US$ 542,747,³⁴ the contract quickly grew to more than $5 million in 2018.³⁵ For more info visit the FSFW Grantees page.

Links with the Tobacco Industry Through the Years

Ogilvy & Mather has well documented history of working with the tobacco industry. Tobacco legacy documents, made public as a result of litigation in the US in the 1990s, show that the agency has worked on advertising and public relations campaigns for the tobacco industry since the 1950s.³⁶
Recently, the company has done some anti-smoking campaigns as well, both in the UK and abroad. Since 2017 it has had a multimillion dollar contract with the Philip Morris-funded Foundation for a Smoke-Free World (see below).

1950s

During the 1950s Ogilvy, Benson & Mather was the advertising agency working with Philip Morris to launch Spud cigarettes with a filter. Filter tip cigarettes were introduced to reassure smokers that the industry was taking action following the emergence of research evidence linking smoking and lung cancer in 1951. In reality filters allowed smokers to inhale toxic smoke more deeply into the lungs.³⁷
It was also at this time that menthol cigarettes were introduced – once again with reduced risk connotations using words such as ‘fresh’ to describe their taste.

1960s

Ogilvy, Benson & Mather Do Not Accept Cigarette Accounts

In 1964 it was widely reported in the US press that Ogilvy, Mather & Benson no longer accepted cigarette accounts.³⁸³⁹⁴⁰
David Ogilvy called cigarette commercials “disgraceful…villainy.”⁴¹

1970s

Following David Ogilvy’s retirement in 1973, Ogilvy and Mather accepted tobacco industry accounts again.⁴²
In 1977 Ogilvy & Mather ran an advertising campaign for RJ Reynolds’ new low tar cigarette called Real.⁴³⁴⁴⁴⁵

1980s

In the 1980s, Ogilvy and Mather provided creative services to a number of tobacco companies and cigarette brands, including (but not limited to):

* Brown & Williamson’s Kool cigarette brand⁴⁶

* RJ Reynolds-MacDonald’s Vantage Cigarette brand⁴⁷

* British American Tobacco’s Kent cigarette brand⁴⁸

* Philip Morris⁴⁹

Public Affairs for a Front Group: the Tobacco Institute

In 1987 Ogilvy & Mather entered into an agreement with the front group the Tobacco Institute – set up by the tobacco industry – to provide (according to the original communication):

public affairs consulting services on the excise tax, public smoking and coalition building issues, as well as public relations support to The Tobacco Industry Labor Management Committee. These services shall include, but not be limited to, assistance in strategy development and implementation, writing assignments as appropriate. And initiating and maintaining contact with targeted coalition groups.

The Institute will pay Ogilvy a retainer of $45,000 a month to perform the services described above. Any assignments outside the scope of this contract will be negotiated separately.”⁵⁰

Creating Doubt : Sick Building Syndrome

Tobacco smoke is made up of over 7000 chemicals, 69 of which are known causes of cancer.⁵¹
It is known that second-hand smoke, namely the smoke that comes from the burning tip of a cigarette (side-stream smoke) and the smoke exhaled by the smoker (main-stream smoke) is harmful. In adults, amongst other illnesses, it can cause lung cancer, heart disease, acute coronary events (such as stroke & heart attack), bronchitis and emphysema.⁵²
In the 1980s, research studies revealing a link between second-hand smoke exposure (SHS; also known as Environmental Tobacco Smoke or ETS) were rapidly emerging.⁵³⁵⁴⁵⁵
In 1987, in addition to their public relations role, Ogilvy and Mather were commissioned by the Tobacco Institute to address the increasing public concern regarding environmental tobacco smoke.⁵⁶
O&M conceived and executed a well-constructed and targeted campaign to divert attention away from tobacco smoke in the work place and onto the actual building in which people worked by publicising a phenomenon known as ‘Sick Building Syndrome’. In a document pitching their proposed advertising strategy, O&M explained that their objective was “to educate identified publics on the true nature of the indoor air quality problem and thereby put ETS in its proper context.” In other words to change the focus and divert the issue.⁵⁷

• More on SHS, see: Environmental Tobacco Smoke. The construction of the so-called problem around second hand smoke, was part of a larger tobacco industry tactic of Influencing Science.

1990s

British American Tobacco (BAT) handed a significant chunk of its global advertising business to Ogilvy & Mather in 1999, following the announcement of a ban on poster and press advertising in the UK. As a result of a merger with Rothmans, O&M Worldwide took over three global brands; Rothmans, Peter Stuyvesant and Winfield. Prior to the merger, O&M handled just one significant BAT brand, a popular South American and Caribbean brand called Free.⁵⁸
Marketing Magazine at the time predicted:

Much of O&M’s work will inevitably focus on building brand awareness in markets outside Europe, where restrictions on tobacco advertising are less stringent. Although most European countries will not follow the UK’s lead in implementing a total ban on tobacco marketing this year, they are obliged to do so by 2001. A further ban on tobacco sports sponsorship, to be introduced in Europe by 2003, will also restrict marketing opportunities in Europe. ⁵⁹

2000s

Anti Smoking Campaigns: Conflict of Interest?

A conflict of interest issue reported in the Guardian national newspaper revealed that in 2003 BAT was still one of the Ogilvy Group UK’s clients.⁶⁰ The group withdrew an anti-smoking advert created for Action for Smoking and Health (ASH) which was titled “Passive Smoking Kills” because CEO Mike Walsh feared the campaign would upset their clients BAT. ASH did not approach Ogilvy & Mather to create this add, rather ASH was approached by Ogilvy & Mather after two junior creatives won a competition to devise a campaign for a charity of their choosing. The ad, created to warn the public about the dangers of passive smoking, depicted a bullet firing out of the end of a lit cigarette with the tagline, “Passive smoking kills.”
Despite this conflict, four years later in 2007, Ogilvy was awarded a Cannes Lions Direct Gold price for their anti-smoking campaign titled the “Smoke is Poison” campaign. As part of this campaign, a gas tanker in the form of a cigarette driving around the UK. The back of the tanker was covered with hazardous material warning labels (see picture).⁶¹
(The Cannes Lion jury was chaired by Rory Sutherland , Vice Chairman, Ogilvy Group UK, who would be one of the founding members of the The Common Sense Alliance in 2012, a BAT-supported group campaigning against Plain Packaging – see below).

Ogilvy in Anti Smoking Campaigns

Singapore

Ogilvy & Mather Singapore developed the “Live It Up Without Lighting Up” for the Health Promotion Board’s youth-targeted smoking control campaign in 2010, for the second year running. The campaign encourages youth in “fresh and cheerful settings” to lead a tobacco-free life by trumping up the benefits to one’s appearance, fitness, spending power and the environment.
An integrated campaign that “spanned above-the-line, out-of-home, online, radio and on-ground activities” in the run up to , World No Tobacco Day celebrations, included the “first-of-its-kind moving flash mob to be organised in Singapore”. Creative Director Troy Lim explained:

A smoke-free world is one where everyone is more beautiful, fitter and wealthier in a greener environment. We want youths to aspire to take a stand against tobacco and inspire those around them to do so as well to create this wonderful world.” ⁶²

In 2011, the Health Promotion Board and the Ogilvy Singapore team engaged in an exercise “getting under the skin of the target audiences”. Marketing research told them that “Smokers in Singapore live in an environment of isolation and victimization. The more negative the communication, the more they smoke as a sign of defiance against this social isolation. Since the decision to quit, like the decision to smoke, is deeply internal and emotional”, the only thing advertising can is to “help quitters persist through the tough quit journey (…) through a system of encouragement and support”. Commented Troy Lim, Creative Director, Ogilvy & Mather Advertising Singapore:

We made Quitters – real people who pledged to stay smoke-free – the stars of the campaign. They served as inspiration and encouragement for other smokers to follow, turning ‘I Quit’ into a movement.

The creative team created a symbol (formed by the index and third finger closed together), a twist on how a smoker holds a cigarette to form a pledge gesture. This symbol identifies quitters as a special group of people who deserve to be celebrated and also creates a unifying gesture to rally quitters and other members of the community together (see picture).⁶³

The I Quit Club Facebook page shows that two years on the campaign is still running.

Thailand

An advert Ogilvy Asia created for the Thai Health Promotion Foundation in 2012 was called “brilliant in its simplicity” by the Financial Times. The crux is in the use of “that perfect tool of manipulation: children” to deliver the message to smokers who – “as a rule – don’t like to be lectured”. The short films include clips where “cherub-faced kids walk up to smokers on the streets of Thailand holding cigarettes in their tiny fingers and asking for a light.”⁶⁴ The smokers are shocked and they begin to list reasons why the kids should not smoke. The kids then cleverly ask ‘So why are you smoking?’, hand the smoker a piece of paper and walk away. The piece of paper reads, ‘You worry about me, but why not about yourself?’ Smoking Kid has gone viral and is up for several prizes.

India

Each year Ogilvy & Mather offices around the world produce campaigns that address all kind of pressing challenges – from global warming to domestic violence to wildlife conservation to poverty reduction. One of the price-winning cases in 2012 ending up in the annual Sustainability Report of Ogilvy parent company WPP was a chanting cigarette lighter for the Cancer Patients Aid Association (CPAA) in India.

Ogilvy Still Working for BAT and other tobacco companies

Meanwhile, Ogilvy & Mather and indeed the UK branch of the company still have a relationship with the tobacco industry in 2013 (at the time of writing). BAT is not listed as a client on Ogilvy’s UK website, but that is a matter of client confidentiality and the corporate culture of discretion.⁶⁵
Nevertheless, David Fox is listed as The Ogilvy Group UK’s Worldwide Managing Director for BAT.⁶⁶ Fox’s LinkedIn profile says that he has held the role of “Leading Ogilvy Groups third largest worldwide client BAT” since April 2009.⁶⁷
The role of global brand director to oversee the BAT account was created in 2004 by the marketing services network 141 group, (merging with Ogilvy at the time, to be rebranded as OgilvyAction in 2007). At the occasion, Richard Church, chairman of 141 Europe, said:

BAT is a truly global account, which requires integrated strategy and implementation across all markets within the considerable constraints of widely varying legislation. Since 141 first started working with BAT we have made a tangible difference to its marketing thanks to our unique approach to understanding consumer behaviour and the impact of communication at key decision moments.⁶⁸

With the merger, BAT accounts mostly in Asia and the Pacific handled by 141 were integrated with Ogilvy & Mather’s existing global client service on BAT. In 2003, 141’s main BAT briefs include State Express 555, Craven, BAT’s duty-free business and numerous local brands.⁶⁹
In 2010, when Steve Harding was appointed global CEO of OgilvyAction, BAT was still mentioned as its main client. More recently, Heavylight, an interface design company, developed a Flash based sales presentation for BAT, based on Ogilvy Action’s concept and artwork. This was shown on a 46inch transparent touchscreen at an exhibition in Cannes in October 2012.⁷⁰
In 2010, Ogilvy Public Relations Prague was shortlisted for the European Excellence Award for a campaign the agency developed in the Czech Republic for British American Tobacco CZ called “Unique People – Unique Brands”.⁷¹

Other Ogilvy & Mather Tobacco Clients Worldwide

A few examples of Ogilvy & Mather offices elsewhere in the world that have BAT or other tobacco companies listed as a client (May 2013):

*MemacOgilvy, office in the Middle East. BAT is the single largest client within Ogilvy Africa and Middle East;

*Ogilvy South Africa as well as Kenya, Ghana and Namibia have BAT as client – according to the 2005 Ogilvy African partners list⁷²

*Ogilvy Japan, lists BAT as one of its major clients;

*Ogilvy Poland lists Rothmans as a client;

*Ogilvy & Mather Indonesia acquired the account for Gudang Garam’ s Surya Slims in 2008. Marketed as a low tar, mild brand, Surya Slims were launched amid Government plans to limit cigarette production to 240 billion sticks by 2010. Indonesia is the world’s fifth largest tobacco market.

* Malaysia BAT is one of Ogivy’s large clients.

The Common Sense Alliance

In 2012, the Vice Chairman of The Ogilvy Group UK, Rory Sutherland, is listed as a founding member of The Common Sense Alliance, an anti-regulation group supported by BAT. On the Alliance’s webpage, Sutherland is described as ‘Former President of the Institute of Practitioners in Advertising’ and as having worked in marketing and advertising since 1988. His biography does not mention that he is the Vice Chairman of The Ogilvy Group.
Although The Common Sense Alliance says that it is not a political group, two members of the organisation, Roy Ramm and Peter Sheridan have presented themselves as expert witnesses on smuggling to the Department for Health in their capacity as former police chiefs – without disclosing their links to the Alliance or BAT.⁷³

TobaccoTactics Resources

• Rory Sutherland
• The Common Sense Alliance
• WPP

References

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Relationship with the Tobacco Industry

Tobacco Membership Fees

INTA is funded through membership fees. Corporate members include British American Tobacco (BAT), Philip Morris International (PMI), Imperial Tobacco, Japan Tobacco International (JTI) and Altria.⁷⁶⁷⁷

Tobacco Company Representation on INTA Board

Tobacco company representatives have held various INTA leadership positions.
2018/19: PMI’s Assistant General Counsel Trademarks Copyright and Designs, Barry Gerber, served on INTA’s Board of Directors.⁷⁸
2017: JTI’s Ronald van Tuijl was INTA’s ‘Immediate Past President and Ex-Officio’.⁷⁹
2016: Van Tuijl served as INTA President.⁸⁰
2015: Van Tuijl was President Elect.⁸¹
2014: Van Tuijl served as Secretary.⁸²
2013: BAT’s Toe Su Aung was INTA President and Chair of the Board, and JTI’s van Tuijl was on the Board of Directors.⁸³
2012: Aung was President Elect, and Van Tuijl sat on the Board.⁸⁴
2011: Aung served as Vice President.⁸⁵

Countering Tobacco Control Measures: Plain Packaging

INTA has a history of working against tobacco plain packaging, without disclosing its tobacco industry membership.

Singapore

On 31 October 2018, Singapore’s Ministry of Health announced that Singapore would introduce plain packaging with enlarged health warnings on all tobacco products.⁸⁶ Weeks later, INTA issued a media statement that tried to shift the policy debate away from health to economics, urging the Singapore government to take a “well-informed and balanced approach to this issue” by considering “the contribution of intellectual property (IP) to economic growth”.⁸⁷
INTA stated that “research published by INTA” (no details provided) showed that “trademark intensive industries” contribute to 50% of Singapore’s GDP, 60% of its exports, and 29% of overall employment. INTA further claimed that plain packaging would lead to the Singapore market being flooded with illicit tobacco, and urged the Singapore government to modify the proposal to focus on preventative health education instead.⁸⁷
The statement ended with a short biography of INTA, stating that the association’s members included “more than 7,200 trademark owners”. It failed to mention that its membership included the major tobacco companies, whose representatives have served key roles on INTA’s Board.

Europe

INTA also opposed initial proposals by the European Commission to include plain packaging in the EU Tobacco Products Directive Revision (TPD) (2009-2014).
In December 2010 INTA told European media that “We believe that plain packaging will encroach on the rights of trademark owners and their ability to properly and lawfully use their trademarks. In addition, in our view, plain packaging would make it easier for counterfeit products to enter the market and make it more difficult for consumers to distinguish genuine from counterfeit products.”⁸⁸
Plain packaging was ultimately removed from the TPD proposal, which has been labelled “the most lobbied dossier in the history of EU institutions’.⁸⁹

Australia

In January 2019, INTA submitted an official briefing to the Secretariat of the World Trade Organization (WTO) Appellate Body to support the Governments of Honduras and the Dominican Republic in their appeal against the WTO ruling that upheld Australia’s plain packaging law.⁹⁰ In its briefing, INTA urged the Appellate Body to consider “the highly negative effects that the TPPA Plain Packaging law could have not just within the tobacco industry, but potentially across all sectors of consumer goods”, and claimed that plain packaging erodes Intellectual Property Rights under the Paris Convention and TRIPS.⁹⁰ INTA also accused the WTO Panel ruling for failing to consider the impact of plain packaging on illicit tobacco trade and further claimed that the WTO Panel incorrectly had interpreted Article 20 of TRIPS in coming to its conclusion.⁹⁰
For several years INTA has been opposing Australia’s plain packaging laws.
In 2009 Australia’s National Preventative Health Taskforce examined the evidence to support the introduction of plain packaging.⁹¹ INTA submitted a letter to the Taskforce opposing the policy and arguing that it would deprive a trademark owner of the use of its personal property, who should therefore be compensated, and that the policy could give rise to an increase in illicit tobacco trade.⁹² No supporting evidence was given to support these claims.
INTA also provided comments to the 2010 Australian Senate Standing Committee on the draft Tobacco Plain Packaging Bill and wrote to Australia’s Assistant Secretary of Health in June 2011.⁹³⁹⁴ On both occasions INTA argued that the plans to introduce plain packaging “represent an encroachment on the rights of trademark owners and their ability to properly and lawfully use their trademarks”. In July 2011, INTA wrote to the Australian Standing Committee on Health and Ageing:

“Although we take no position on the particular health issues that are the focus of this legislation, we strongly believe that the Tobacco Plain Packaging Bill 2011 is a serious encroachment on the rights of trademark owners and frustrates the ability of trademarks to function properly as a part of free and effective commerce.”

INTA also raised issues with respect to:

• certain provisions of the Constitution of Australia;
• an increased risk of counterfeiting;
• use requirements under Australia’s Trade Marks Act;
• the effect of the Bill on distinctiveness and registration of a trademark;
• potential treaty violations of the TRIPS Agreement and Paris Convention, which will place Australia outside the international trademark harmonization process.⁹⁵

In none of its correspondence with the Australian Government did INTA declare its relationship with the tobacco industry.

• Also see: Plain Packaging in Australia and Australia: Trademark Claims.

Canada

In the 1990s the tobacco industry was concerned that Canada would be one of the first countries to introduce plain packaging and set a world precedent.⁹⁶
On 6 April 1994, tobacco company Rothmans (later acquired by BAT) wrote to INTA on behalf of the Canadian Tobacco Manufacturers Committee (CTMC) to brief it on plain packaging developments in the Canadian House of Commons Standing Committee on Health and proposed the “possibility of the International Trade-Mark Association making a presentation or sending a brief to the Committee”.⁹⁶
Three weeks later, the Chairman of the Standing Committee received a letter from INTA that opposed the proposed plain packaging measure.⁹⁷ Whilst stating that the association took “no position on the public policy and health issues as they relate to the plain packaging of tobacco produce”, INTA expressed its “concerns regarding the potential impact that the plain packaging proposal for tobacco products being studied by your Committee may have on trademark owners, generally and the public at large”, and urged the Committee to reject the plain packaging proposal.⁹⁷

United States of America

In 1990 INTA also opposed ‘The Tobacco Control and Health Protection Act’, which was pending before the American Congress.⁹⁸
The legislation would have, among other things, imposed limits on the use and display of trademarks in cigarette packaging and advertising.

Countering Tobacco Control Measures: Larger Health Warnings

New Zealand

In 1995 an article in the New Zealand media reported that INTA had “come out in support of our tobacco industry” and opposed the proposals in New Zealand to increase health warnings on cigarette packets.⁹⁹ INTA was quoted as stating that the health measure would “unreasonably and unnecessarily curtail trademark owners’ legitimate rights”.⁹⁹
That same year INTA also wrote to the New Zealand Minister of Health to “express the Association’s concern regarding the proposed amendments to the New Zealand Smoke-free Environments Act of 1990”.¹⁰⁰ INTA, which identified itself as a “worldwide membership organization representing 2800 corporations’ without specifying that these included tobacco companies, argued that the proposed size of the warnings would restrict trademark owners in exercising their right to identify their goods in such a manner so as to distinguish those goods from others in the marketplace.¹⁰⁰

TobaccoTactics Resources

• European Communities Trademark Association
• Global Trademark and Intellectual Property Rights Groups
• Countering Industry Arguments against Plain Packaging
• It Breaches Intellectual Property Rights
• It will Lead to Increased Smuggling

Relevant Link

International Trademark Association website

References

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