Tobacco Plain Packaging in Australia: JT International v Commonwealth and Beyond
Abstract
For as long as plain packaging legislation had been floated as an option for tobacco products, tobacco companies had threatened legal action against such a regime. Those threats became action when, two tobacco companies separately commenced litigation in the High Court of Australia claiming that the Tobacco Plain Packaging Act 2011 (Cth) breached section 51(xxxi) of the Australian Constitution. Yet, the Act survived that challenge and remains in force to this day. This article reviews the introduction of the Act and subsequent challenge, and closely analyses the judgments comprising the decision in JT International v Commonwealth. It then examines how plain packaging has operated in practice, including enforcement of the regime and unexpected legal issues arising from its application. This article concludes with a reflection on what the Commonwealth’s victory regarding plain packaging means for constitutional intellectual property issues more generally.
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