Tobacco products have long been controversial and over the last few decades we have witnessed the steady departure of familiar brand names from TV screens, radios, magazines, newspapers, billboards, sponsorships and even shop shelves. There is now a further proposal to introduce plain packaging for tobacco products – removing all elements of their branding to leave only the product name presented in a standardised format. This represents a potential problem for all advertisers.
First of all let’s be absolutely clear that the International Advertising Association (IAA) unequivocally supports all efforts to promote public health by regulating the consumption of tobacco products. But, introducing plain packaging will not achieve its intended goal of discouraging smokers, young or old, because the reality is that the branding on the package does not itself cause smoking: smokers will smoke regardless of the product’s packaging.
However, the proposal to introduce plain packaging on what is a legal-to-sell and legal-to-buy product sets a very dangerous precedent. Its enforcement for tobacco, however well-meaning, could all too easily be expanded to other products with far-reaching and unforeseen consequences on the advertising industry and the diverse businesses it supports.
Let’s look beyond cigarettes to the bigger picture. Branding, the unique trademarks and trade dress of name and image that differentiate a particular product, is a piece of intellectual property. It facilitates consumer choice, information and convenience, and helps to attract and retain customer loyalty. It is good for consumers and it is good for companies. As such, most businesses consider branding as fundamental to their ability to compete in a crowded marketplace and so they invest in it heavily.
The enforcement of a plain packaging policy for any product will certainly undermine the essential function of branding on the economy and society. Limiting the ability to brand a product limits the ability to differentiate that product and therefore limits its ability to compete. This is effectively a restriction of trade and that is very bad for business—all business. It hampers the flow of trade, reduces the growth of markets, stifles healthy competition, and hinders regulation as it becomes even easier for unlicensed imitations to reach consumers.
Not only is plain packaging a bad business idea, it may not be lawful. Trademarks are legally recognised as property rights in most countries, and they are protected under an array of national and international laws and treaties. Plain packaging legislation attacks the established rights of trademark owners and deprives them of the use of their legally protected intellectual property. It therefore follows that the trademarks and trade dress that make up the “branding of a product” should not be unduly restricted with regard to legally sold products.
At the IAA we have long advocated for the freedom of commercial speech and have been at the forefront of defending a responsible communications industry against unwarranted or misguided bans and restrictions. We strongly believe that the introduction of plain packaging legislation prevents companies from using their legally owned and endorsed intellectual property, and if implemented for one category of products, a dangerous precedent is created that could be imposed on other categories in the name of furtherance of other seemingly well-intended goals.