Tobaksproduktdirektivet (Tobacco Products Directive, TPD)

Tobaksproduktdirektivet (Tobacco Products Directive, TPD) reglerar sammansättning, märkning och marknadsföring av tobaksprodukter. Bland annat föreslås införande av neutrala tobaksvaror inom EU, som ett led i att förbättra folkhälsan. Med neutrala paket avses att alla former av branding (färger, bilder, logotyper och varumärken) förbjuds på förpackningarna. Mot detta gör NDM starka principiella invändningar från immaterialrättslig synpunkt då det väsentligen inskränker företags möjligheter att nyttja varumärken och kännetecken.

IPRs and Plain Packaging

NDM – the Swedish Business Committee on Market Law – is an association and a network of cooperation within the business community. Our main field of activity is market law and consumer policy in a wide sense. NDM brings together 24 business associations and sectors and represents their common interests in that field.  A Members’ List is attached.

 

Given their fundamental role for business and society in general, intellectual property rights (IPRs) are of course much in the focus of NDM. They form a decisive impetus for innovation and competition, and must not be eroded or unjustifiably restricted. We have no wish whatsoever to unduly interfere with domestic issues of other countries, but note that IPRs are largely based on international conventions and other such instruments. Therefore, apparently national measures may well have implications beyond their formal geographical scope. 

 

The new Tobacco Products Directive (TPD) is now in the phase of being transposed into Member States’ legislation. In that context, we have noticed that the British Government is considering the introduction of so-called plain packaging for cigarettes brought on the market in the United Kingdom. We are of course alive to the fact that plain packs are optional under the TPD as such, but nevertheless find it to be cause for proper concern.

 

Plain packaging would, in the view of NDM, eliminate very basic functions of a trademark and hence undermine the IPR protection system. It may therefore prove incompatible with EU and international law. The laudable purpose of reducing tobacco smoking does not change this. Also, there is a pending WTO case on plain packaging, and it would seem reasonable to await the outcome of that.

 

In addition to the IPR concerns NDM wants to highlight that plain packaging is likely to further facilitate illicit trade in tobacco products. Currently 10 percent or more of the total cigarette market in the EU consists of counterfeit and contraband. This is a grave societal problem across the EU and beyond; althemore so as there is a clear link between organized crime and illicit trade in tobacco. Thereby it also helps fund other criminal activities and corrupt practices.    

 

Please be ensured that NDM supports policies to promote public health, the British Government’s goal to reduce smoking among its population included. However, we strongly feel measures, no matter how well-intended, should always be compatible with the relevant legal frameworks, and capable of fulfilling the objectives without causing serious side effects, such as incentivizing criminal activity.

 

It is hoped you will find our comments above useful, and worth taking into account in the ongoing legislative process.

 

Yours faithfully,

 

Tina Wahlroth

Acting Chair

 

Tobaksproduktdirektivet (Tobacco Products Directive, TPD)