Plain confectionery packaging a heavy-handed response to health concerns

Legislating tobacco-style plain packaging for confectionery is a disproportionate response to the obesity crisis and strips companies of valuable trademarks, writes the Institute of Economic Affairs’ head of lifestyle economics.

‘Plain packaging’ is a policy which eliminates all branding and visual design elements on products and forces manufacturers to use state-mandated colors and typefaces to create homogenized packaging with no differentiating features.  Plain packaging is currently only applied to tobacco products in a handful of countries worldwide, but if health activists have their way that will change.

It is becoming clear that health activists have a broader agenda to use the ‘tobacco playbook’ in their efforts to apply extreme regulations to other sectors.  Campaigners in Australia have called for plain packaging of children’s toys on the grounds that existing packaging encourages gender stereotyping.

With governments such as the UK passing tobacco-style ‘sin taxes’ on soft drinks and discussing tobacco-style advertising bans on fast food, we must wonder if the day will come when they demand tobacco-style packaging laws as well?

The governments of Australia, the UK, France, New Zealand and Norway have all passed legislation enforcing plain packaging on tobacco products, and signs indicate that confectionery will soon follow.

Already, the World Health Organisation (WHO) has targeted confectionery for stronger regulatory measures.

The Ontario Medical Association has already begun designing plain packaging for pizza boxes and soft drinks, replacing company logos with photos of diseased livers and gangrenous feet.

Fortunately, some governments are fighting the slippery slope that plain packaging represents.

Indonesia and the Dominican Republic have filed a lawsuit against Australia with the World Trade Organisation (WTO) and a lively debate has erupted in anticipation of the verdict.

If the WTO rules in favor of Australia, it potentially clears the way for other governments to implement similar laws and could redefine the intellectual property rights of consumer brands in other sectors such as Cadbury, Coca-Cola and Mars.

Neither side of the argument denies that very high levels of sugar consumption increase the risk of obesity and everyone is agreed on the need to look for solutions to diabetes and heart disease, but to strip a business of its valuable trademarks is neither a proportionate nor effective way to go about it.

For businesses, this regulation compromises the intellectual property of brands, encroaches on brand integrity and strips companies of the values and attributes associated with their brand – which may have taken decades to develop. Trademarks are important for consumers and businesses alike, functioning as a shorthand that informs people of the level of quality, reliability and consistency of a product.

Plain packaging legislation is based on the highly dubious belief that cigarette packaging encourages non-smokers – especially young people – to take up a famously unhealthy and expensive habit. In 2016 Britain was ranked as the third-worst country in the European Union on the Nanny State Index. A nanny state is characterised by the excessive interest and influence of the government on the lives and choices of its citizens. The introduction of plain packaging in the United Kingdom clearly falls under this category, infantilising consumers by stripping them of their freedom to make their own decisions in accordance to their own adult judgement. The dangers of tobacco consumption are no secret, and informed adults are able to make educated decisions about cigarettes regardless of packaging.

Claims have been made that plain packaging facilitates lower rates of tobacco consumption but they are not supported by empirical evidence. Moreover, studies such as the 2016 Nanny State Index – of which I am the editor – show that countries which impose rigorous regulations on alcohol and tobacco do not have lower rates of consumption. Nanny state regulations are generally ineffective; they intrude upon the private lives of individuals for little or no ‘public health’ gain.

The focus should instead be on the potential dangerous outcomes of plain packaging implementation. These measures could boost illicit trade and organised crime, hamper investment, affect jobs and damage small businesses, as has already happened in Australia. Of no less concern is the legal precedent set by plain packaging. The UK and Australian governments have effectively decided that the use of trademarks, branding and logos can be banned outright if they think it will discourage children from buying adult products – products that they are not legally entitled to purchase.

This should set alarm bell ringing among brand owners, particularly in the alcohol and gambling industries. If one industry is deprived of its intellectual property, all trademark owners are at risk. How long before plain packaging is introduced for fast food, pizza, breakfast cereal, alcohol, sugary drinks, and other ‘sinful’ consumer goods? The ‘public health’ lobby have already begun suggesting that this will be the next logical step.

Paternalistic governments are increasingly involved in the private lives of their citizens and plain packaging laws are a prime example. In contrast with nations that advocate free choice and respect the decision-making power of adults, plain packaging regulations infantilise British citizens, suggesting that without governmental interference adults are not able to make responsible decisions. The free market is founded on property rights, including intellectual property rights. It is deeply concerning so see governments sweep away these rights in the tobacco sector on little more than a whim. The question is, where will this trend take the government next?