The Australian tobacco plain packaging legislation: A case study on intellectual property enforcement and policy intervention to promote public health

This article focuses on Australian tobacco control measures and the legal challenges brought against them, especially in relation to the curtailment of intellectual property rights. The first challenge was instituted before the Australian High Court to question the constitutionality of the measures and whether they amounted to an unjust acquisition of proprietary interest. The second challenge was an arbitral claim by Philip Morris against the Australian Government for impairing its intellectual property related investments in Australia. The third legal hurdle commenced in 2012 before the WTO Dispute Settlement Body for the alleged violation of Australia’s obligations under WTO Law. Australia successfully defended all three legal challenges. This article discusses the issues raised in these legal challenges and takes the position that the Australian experience has shown that tobacco control measures are justifiable under international economic law. It further argues that the public interest and public health exceptions incorporated into the general body of WTO law clearly recognize the right of sovereign states to adopt national measures to promote public interest.