Plain Packaging and Warning Labels—While the WTO is Examining the Legality of Packaging and Labeling Requirements that Prohibit the Use of Lawfully Registered Trademarks on Tobacco Products, Researchers Promote Their Use on Soft Drinks and Alcoholic Drinks to Improve Public Health

by King & Spalding
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There have been several pieces of research recently calling for the use of plain packaging and graphic health warnings, similar to those used on tobacco products, on soft drinks and alcoholic beverages as a means of dissuading consumption.

A study by the University of Auckland found that plain packaging and warning labels could significantly reduce young adults’ preferences for and likelihood to purchase soft drinks, and that these labeling measures therefore warrant consideration to reduce childhood obesity.1 The research was based on an online survey asking 604 people in New Zealand between the ages of 13 to 24 years, who consume soft drinks regularly, about their views and perceptions of images of branded versus plain packaged soft drinks, with either no warning or a text or graphic warning, and with or without a 20 % tax. The cans were modeled after existing plain packaging measures and/or health warnings in Australia, Chile and New Zealand. For example, the plain packaging image had the same color (drab dark brown) as that imposed under Australia’s tobacco plain packaging law, and the warning label was based on Chile’s warning labels for foods that are high in energy, salt, saturated fat or sugar. The researchers found that plain packaging and the warning labels significantly reduced the participants’ preferences for, and reported probability of, purchasing soft drinks.

Similarly, two recent studies in Canada support the case for plain packaging and graphic health warnings on alcoholic beverages.

First, a study by Saint Mary’s University in Halifax claims that “warning labels and plain packaging on alcohol bottles work in dampening consumer interest.”2 The study participants (440 in total) were asked to rate a variety of spirit, wine and beer bottles with warning labels covering either 50, 75 or 90% of the label surface, along with other plain packaging labels in terms of visual assessment of the products, and to comment on how other consumers might rate the product and how boring the product seemed. The researchers found that the lowest ratings were given to products with larger warning labels and those with plain packaging. Plain packaging also reportedly turned out to do the best job at focusing participants’ attention on the health warning itself.

Second, a survey by Public Health Ontario reportedly found that graphic health warnings on alcoholic beverages were the most effective warning labels. It argued that the prevailing approach of using low-risk drinking guidelines is not enough and that graphic warnings are necessary as there is a low level of awareness among Canadians about the link between alcohol and health.3

The above described labeling and packaging restrictions are covered by several agreements of the World Trade Organization (WTO), irrespective of whether they apply with equal force to domestic and imported products. These types of measures are at the heart of the WTO dispute involving Australia’s plain packaging measure for tobacco products. The four complaining countries, Honduras, Dominican Republic, Indonesia and Cuba allege that plain packaging is an unjustifiable encumbrance on the use of trademarks prohibited by Article 20 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), and an unnecessary obstacle to trade under Article 2.2 of the Agreement on Technical Barriers to Trade (TBT Agreement) given that it is more restrictive than necessary in light of the fact that there is no evidence that such measures actually contribute to the protection of health.

The WTO Panel adjudicating the dispute, which started in 2012, recently announced that it does not expect to circulate its final report to the parties before May 2017. A publicly available report addressing the important systemic issues of the scope of trademark protection and the appropriate approach to the assessment of scientific evidence will become available only a couple of months later, following translation into the three official languages of the WTO. Given the drive by the World Health Organization and health researchers of promoting tobacco-like regulation in the food and beverage sector, the industry will need to pay close attention to the findings of law and fact in this WTO report.

1 T. Bollard et. al., “Effects of plain packaging, warning labels, and taxes on young people’s predicted sugar-sweetened beverage preferences: an experimental study,” International Journal of Behavioral Nutrition and Physical Activity (2016).
2 M. Al-Hamdani et al., “Alcohol Warning Label Perceptions: Do Warning Sizes and Plain Packaging Matter?” Journal of Studies on Alcohol and Drugs (2017).
3 “It’s time to put warning labels on alcohol bottles, research says,” Cantech Letter, December 12, 2016, http://www.cantechletter.com/2016/12/time-put-warning-labels-alcohol-bottles-research-says/.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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