It is a rare lawyer who has never acted for a client that everyone hates. We learn that there are two sides to most stories. We know too that an ‘open and shut’ case is often anything but. Leave prejudgement at the door, then, to consider proposals currently under consideration which affect an unpopular industry, and which many consider hardly worth discussing: plain packaging for tobacco products. The story has a sting in its tail.

Section 92 of the Children and Families Act 2014 grants powers to the secretary of state to introduce regulations to standardise the packaging of tobacco products. A public consultation took place over the summer and the government is currently weighing up the submissions to it.  Standardised packaging would mean tobacco is sold only in drab brown packets. No livery would be allowed on the packets: no gold Benson & Hedges, no Camels, no Marlboro ‘Vs’, not even distinctive lettering, just the brand name in standard size and typeface, and the health warning.

Some of the brands affected are the largest in the world. Marlboro, for example, has never left the top-10 list of most recognised global brands.  These top-end brands still sell at a large premium – just look at the price differentials next time you are at the check-out. No wonder, then, that the tobacco companies are protesting. The proposals, they say, are nothing more than a vindictive asset-strip.  

Proponents of the legislation argue that it will help to reduce tobacco consumption. At the front-end, dull brown packets will make it less attractive to take up smoking, while at the back-end they will loosen ties to a ‘favourite’ brand and so help people to quit. A public health review in 2014 found that standardised packaging would lead to a ‘modest but important’ reduction, over time, in the uptake and prevalence of smoking.  

The tobacco industry disagrees. Do people really start or stop smoking because of the brand on the packets? As regards that particularly public health review, the industry cites other reviews which come to a different conclusion. It also points to the prevalence of counterfeit cigarettes which they say will become even harder to police when packaging is standardised (nowadays half of illegal tobacco imports into the UK are not contraband, they are counterfeits – cigarettes that are boxed and branded with the top brands, and even taste the same, but are actually fakes, containing even more nicotine, tar and other nasties than the genuine article).

Anti-smoking campaigners respond that this is, as it were, a smokescreen. Illegal counterfeiters are sophisticated operations, as able to mimic branded packaging as standardised packaging. The tobacco industry also argues that if you strip tobacco products of their brands, then you effectively create a de-branded product ‘soup’, in which the only way to differentiate products is by price, resulting in a race to the bargain-basement.

Reduce tobacco prices, they say, and the average smoker will just buy more tobacco, the very opposite of what the legislation is trying to achieve. Anti-smoking campaigners respond that this has not happened in Australia, which introduced plain packaging for tobacco in early 2013.

Australia is a test bed, and many countries are watching to see what happens there before they decide whether to go down the same path. So far, the evidence is confusing. Some survey evidence indicates that Australian smokers do indeed find plain packaging less attractive, feel less attached to their brand, and are more inclined to quit. Other evidence suggests that Australia has actually seen an increase in tobacco consumption since the law was changed. The jury seems to be out.

Now, you might say that none of this matters. Governments routinely make policy on imperfect evidence. If you had to wait for crystal-clear clarity every time you brought in a law, nothing would ever get done. We are talking about human lives here. Even if the case is not conclusive, the fact that human lives might be saved is reason enough to change the law.

But in this instance there is one, very sharp, reason why the government needs to make sure that the ground is firm under its feet: article 17 of the EU Charter on Fundamental Rights and Freedoms. The article enshrines protection for personal property as a fundamental right.

It states: ‘Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest. Intellectual property shall be protected.’

The ‘lawfully acquired possessions’ in this case are, of course, the tobacco companies’ brands. No one can deprive the tobacco companies of those brands unless it is ‘necessary for the general interest’. Anti-smoking campaigners will no doubt argue that the ‘general interest’ in this case is public health. But if the case for standardised packaging is not proved – and to a legal standard of proof, not the vagaries of politics and policymaking – then the tobacco companies should receive ‘fair compensation’ for their loss.  

‘Fair compensation’ for deleting the largest brands in the world? Ouch. Perhaps it is the case that every day that standardised packaging is delayed just adds to delay in that ‘modest but important reduction’ in smoking.

But if there is doubt on the point, then the government would be taking a massive gamble. There is no question that tobacco companies would take action in Europe, demanding either that the law be revoked or that compensation be paid. If the government did fail to prove its case, then it would be a PR disaster for anti-smoking policy, and the taxpayer could find itself paying large sums to big tobacco.  

What would you do?

Richard Taylor, DLA Piper