The Ministry of Health and Family Welfare, Government of India recently issued a notification introducing a requirement that the pictorial and textual statutory warnings that are to be placed on the carton must now cover 85% of the display area of the package. The notification, that amends the Cigarettes and Other Tobacco Products (Packaging and Labelling Rules), 2008 states that the pictorial warning must cover at least 60% of the area and the textual warning 25% percent of the area of the package – on both sides of the package.
Why this is quite important is because I believe that this amounts to a de facto plain packaging requirement. The notification mentioned above also amends the rules so as to mandate the publication of a lot of other information to be published on the packet such as: the name of the product, name of the manufacturer/importer and 4 other categories of such allied information. With all of this information to be displayed on the packaging one wonders whether there is any space on the packaging that is left for prominent displays of the brand. However, this wouldn’t really amount to plain packaging in the purest form as implemented by Australia and some other European countries. There the focus was on removing the “flashiness” of the branding, whereas here the Indian authorities seem to want to restrict the space allocated to the brand and do not focus as much on the manner of the display of the branding.
We had recently reported on the Allahabad HC decision encouraging the Government to consider plain packaging as an option to curb smoking among youths in the country, and this is perhaps the Governments first step in that direction.
For all those of you who are wondering whether there would be any TRIPS implications from this move, the answer might arrive sooner than you think. India has intervened as a third party in three ongoing disputes regarding Plain Packaging – filed by Cuba, Indonesia and the Dominican Republic. Perhaps the Indian perspective on plain packaging will come across to the Panel and might affect the final ruling of the Panel.
Speaking of international disputes regarding plain packaging, the WTO dispute involving Australia and others is the biggest in terms of the number of third parties participating in it. The panel report is not expected until mid-2016.
In the WTO, the issue was very recently discussed in the TRIPS council with the five complainants requesting other Members not to implement plain packaging till the panel ruling.
Ukraine added: “If governments had assessed individual trademarks to see whether their characteristics encourage smoking, some action might be justified, but a blanket ban on all trademarks violates the intellectual property rights agreement”
Dear Jayant,
Apologies for the delayed response.
The Panel report will be much awaited and would perhaps lend a context to the larger trade ramifications of this measure.
Thank you for pointing out the TRIPS Council discussions, although in the Indian context it wouldn’t be something as drastic as removing the trademark altogether (for the moment). It’s about decreasing the visibility of the mark, and this might slightly alter the conversation a little bit.