Fighting tobacco in the political arena has proven to be a tough battle for those countries attempting it.  As cigarettes and tobacco products are not actually illegal, governments that have wished to reduce smoking through regulation have been forced to seek alternative measures, such as heavy taxes and requiring tobacco companies to label their products with warnings of the addictive properties and dangerous health effects of tobacco use.  Recently, Australia has unveiled a proposed set of new laws that would be far and away the most drastic attempt yet.

The new proposal would completely strip out branding and advertising on cigarette packs, leaving only the brand name stated in plain font.  The packs themselves would be colored olive green, and each would display “the death and disease that come from tobacco use,” in the form of a disturbing photograph depicting someone suffering from tobacco-related illnesses.  This design was chosen because of the results of studies on the effects of the various components of cigarette packaging.  The studies found that health warnings were generally ineffective.  Those who purchased cigarettes would look at the branding elements, such as logos or text, even when presented with a pack that also had a graphic picture on it.

The proposed legislation is clearly a dramatic step, and to me it seems unlikely to pass (though I don’t have much knowledge of Australia’s tobacco politics).  It seems fairly inappropriate.  Moreover, it may actually be illegal.  Tobacco companies are challenging the legislation under international trademark law, as they feel it would prevent them from marketing their products with the proper source identifiers like logos and distinctive packaging.

The tobacco companies are right, of course.  That’s the whole point.  The plain packaging is absolutely intended to strip away source identifiers that influence consumers.  The plain-packaging idea addresses a fundamental difference between the intended purpose of trademark law and its practice.  Ideally, trademark law is meant as a protection for consumers as much as for producers; customers should be able to tell whose products they’re buying in order to make an informed decision.  In practice, though, trademarks become not only source identifiers, but also a battlefield of psychological warfare waged through advertisements.  Names have power, but logos catch people’s attention on the shelf.

Ultimately, I don’t like cigarettes and have little personal attachment to the right of tobacco companies to advertise.  However, this step seems more than a little extreme and probably overboard.

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