11A.4Milestones in adoption of legislation

Last updated: November 2018

Suggested citation: Scollo, MM, & Greenhalgh, EM. InDepth 11A.4 Milestones in adoption of legislation. In Scollo, MM and Winstanley, MH [editors]. Tobacco in Australia: Facts and issues. Melbourne: Cancer Council Victoria; 2018. Available from: http://www.tobaccoinaustralia.org.au/chapter-11-advertising/11a-4-milestones-in-adoption-of-legislation

Legislation mandating plain packaging was passed by the Australian Parliament on 21 November 2011—see Tobacco Plain Packaging Act 2011, available from: http://www.comlaw.gov.au/Details/C2011A00148  

The legislation makes it an offence to:

'... sell, supply, purchase, package or manufacture tobacco products or packaging for retail sale, that are not compliant with plain packaging requirements. These offences apply to manufacturers, packagers, wholesalers, distributors and retailers of tobacco products in Australia who fail to comply with the plain packaging requirements.157 Chapter 2 of the Act sets out detailed requirements relating to the packaging of tobacco products and the products themselves.'

Explanatory memorandum 1

The Act also provides for regulations to prescribe additional requirements:

'The effect of the requirements will be that tobacco company branding, logos, symbols and other images that may have the effect of advertising or promoting the use of the tobacco product will not be able to appear on tobacco products or their packaging. So as to identify the particular brand or variant of a tobacco product, the brand name and variant name will be allowed on packaging in specified locations, with a specified 'plain' appearance. Information which is required by other legislation or regulations, such as trade descriptions and graphic health warnings, will also be allowed to appear.'

Explanatory memorandum 1

The Act

'... prevents a trade mark from being placed on tobacco products or their retail packaging, so as to prevent trade marks from being used as design features to detract attention from health warnings, or otherwise to promote the use of tobacco products. However, it also ensures that its operation will not affect trade mark owners' ability to protect their trade marks from use by other persons, and to register and maintain the registration of a trade mark. Owners of trade marks in relation to tobacco products will be able to use their trade marks, other than on retail packaging and the products themselves, in ways that do not contravene the TAP Acti or other laws, for example on business correspondence.'

(i) The Tobacco Advertising Prohibition Act 1992 (Cth) Available from: www.comlaw.gov.au/Details/ C2010C00100  

Explanatory memorandum 1

For a full summary of the provisions of the Act, refer to the explanatory memorandum—Tobacco Plain Packaging Bill 2011, available from: http://www.comlaw.gov.au/Details/%20C2011B00128/Explanatory%20Memorandum/Text 1

For a full summary of the provisions of the Regulations, refer to the explanatory statement to the regulations—http://www.comlaw.gov.au/Details/F2011L02644/Download  and to the amendments to those regulations—http://www.comlaw.gov.au/Details/F2012L00563/%20Download.

While the legislation was not signed into law until 1 December 2011, proposals for plain packaging in Australia date back to the early 1990s. The Australian Government approved the release of a discussion paper proposing plain packaging as one of a range of possible measures to address preventable disease, by the National Preventative Health Taskforce, on 10 October 2008.2

Major milestones in the development of this legislation are listed below.

15 Apr 1992: Australian Ministerial Council on Drug Strategy (composed of health and police ministers) proposes large new warnings and asks for a report on plain packaging.

This was after consideration of a report produced for it which recommended on the basis of its findings about the impact of packaging on the effectiveness of warnings, that 'regulations be extended to cover the colours, design and wording of the entire exterior of the pack' (p18).

Centre for Behavioural Research in Cancer. Paper 13: Adolescents' reactions to cigarette packs modified to increase extent and impact of health warnings.

24 Jul 1995: Advisor to (then) Australian Health Minister the Hon Carmen Lawrence MP is quoted in the Sydney Morning Herald as ruling out the idea of plain packaging, citing a need to explore international trade and legal issues.

15 Dec 1995: Australian Senate Community Affairs References Committee releases its (160-page) report. 'The Committee considers that, on the basis of the evidence received, there is not sufficient evidence to recommend that tobacco products be sold in generic packaging.'

Sep 1997: Australian Government formally replies to Senate Committee Report:

'In response to the mounting interest in generic packaging, the Commonwealth obtained advice from the Attorney General's Department on the legal and constitutional barriers to generic packaging. This advice indicates that the Commonwealth does possess powers under the Constitution to introduce such packaging but that any attempt to use these powers to introduce further tobacco control legislation needs to be considered in the context of the increasingly critical attention being focussed on the necessity, appropriateness, justification and basis for regulation by such bodies as the Office of Regulatory Review, the High Court, and Senate Standing Committees. In addition, further regulation needs to be considered in the context of Australia's international obligations regarding free trade under the General Agreement on Tariff and Trade (GATT), and our obligations under International covenants such as the Paris Convention for the Protection of Industrial Property, and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).'

Apr 2008: Release of Freeman B, Chapman S and Rimmer M. The case for the plain packaging of tobacco products. Addiction 2008;103:580–90.

9 Apr 2008: Health Minister the Hon Nicola Roxon MP announces establishment of the National Preventative Health Taskforce.

10 Oct 2008: Release for consultation of the draft report of the Preventative Health Taskforce, entitled Australia: the healthiest country by 2020, including a large number of recommendations including one concerning plain packaging of tobacco products.

17–22 Nov 2008: At the third Conference of Parties in Durban South Africa, Parties to the Framework Convention on Tobacco Control adopt Guidelines on advertising, promotion and sponsorship (article 13) and Guidelines on Packaging and labelling (article 11) that recommend the use of plain packaging.

Oct—Nov 2008: Consultation sessions by the National Preventative Health Taskforce.

1 Dec 2008: Publication of report on first Australian research experiment on plain packaging. Wakefield M, Germain D and Durkin S. How does increasingly plainer cigarette packaging influence adult smokers' perceptions about brand image? An experimental study. Tobacco Control 2008;17(6):416–21.

15 Apr 2009: National Preventative Health Taskforce announces that it has considered more than 400 submissions received on its draft report released in October.

30 Jun 2009: National Preventative Health Taskforce provides final report to Government for consideration, entitled National Preventative Health Strategy – the roadmap for action.

20 Aug 2009: Australian Senator Steve Fielding introduces the Plain Tobacco Packaging (Removing Branding from Cigarette Packs) Bill 2009 which would have required plain packaging of tobacco products. This was referred for consideration to the Senate Community Affairs Committee which heard submissions and completed a report which was later tabled in the Senate on the 28 September 2010.3

1 Sep 2009: The Minister for Health and Ageing, the Hon Nicola Roxon MP releases the final report of the Preventative Health Taskforce which recommends plain packaging as part of a comprehensive package of measures to make Australia the healthiest country in the world by 2020.

Preventative Health Taskforce. Australia: the healthiest country by 2020. National Preventative Health Strategy. Canberra: Commonwealth of Australia, 2009.

'Plain packaging would prohibit brand imagery, colours, corporate logos and trademarks, permitting manufacturers only to print the brand name in a mandated size, font and place, in addition to required health warnings and other legally mandated product information such as toxic constituents, taxpaid seals or package contents. A standard cardboard texture would be mandatory, and the size and shape of the package and cellophane wrapper would also be prescribed. A detailed analysis of current marketing practices4 suggests that plain packaging would also need to encompass pack interiors and the cigarette itself, given the potential for manufacturers to use colours, bandings and markings, and different length and gauges to make cigarettes more 'interesting' and appealing. Any use of perfuming, incorporation of audio chips or affixing of 'onserts' would also need to be banned.'

Tobacco Working Group. Technical report no. 2. Tobacco in Australia: making smoking history. Canberra: National Preventative Health Taskforce, 2008.

Roxon remarks at the launch of the document 'we are killing people by not acting'.

14 Oct 2009: Publication on line of Germain D, Wakefield MA and Durkin SJ. Adolescents' perceptions of cigarette brand image: does plain packaging make a difference? Journal of Adolescent Health 2010;46(4):385–92. Available here.

29 Apr 2010: The Australian Government announced its decision to implement plain packaging for tobacco products and to mandate updated and expanded graphic health warnings at the same time.

7 Apr 2011: Release by the Australian Government of an exposure draft of the legislation alongside a consultation paper, with comments to be received within the following 60 days.

23 May 2011: Review of the evidence published by Cancer Council Victoria.

29 May 2011: Release of results of research showed plain packaging of cigarettes was supported by the majority of Australians.

31 May 2011: Opposition announces it would not oppose plain packs. 

6 Jun 2011: Over 250 submissions received by Government on draft plain packaging legislation.

6 Jul 2011: Bill introduced into House of Representatives, read and second reading moved.

7 Jul 2011: House of Representatives refers Bill to Standing Committee on Health and Ageing.

22 Jul 2011: Submissions close for House of Representatives Standing Committee on Health and Ageing Inquiry into Tobacco Plain Packaging Bill 2011.

4 Aug 2011: Hearings of the House of Representatives Standing Committee on Health and Ageing.

4 Aug 2011: Cancer Council Victoria releases updated evidence review and review of Deloitte report on illicit trade.

18 Aug 2011: Senate refers Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 to Legal and Constitutional Affairs Committee which calls for submissions (by 2 September 2011).

22 Aug 2011: House of Representatives Standing Committee on Health and Aged Care tables the report on its inquiry into Tobacco Plain Packaging.

24 Aug 2011: Second reading debate, third reading agreed to passage of legislation through House of Representatives.

25 Aug 2011: Bill introduced and read a first time in Senate, then second reading moved.

2 Sep 2011: Submissions received by Senate's Legal and Constitutional Affairs Committee.

13 Sep 2011: Hearings of the Senate's Legal and Constitutional Affairs Committee.

17 Sep 2011: Release of new graphic health warnings for tobacco products.

19 Sep 2011: Legal and Constitutional Affairs Committee provides report5 to Senate.

11 Oct 2011: Second reading debate in Senate commences.

2 Nov 2011: The then Minister for Health the Hon Nicola Roxon MP announces that the implementation of plain packaging will be delayed until December 1, 2012 as a result of delays in the Senate review of the bill.

9— 10 Nov 2011: Bills return to Senate including revised timelines. Second reading debate continues and Second reading agreed to; Third reading agreed to. Trade Marks (Tobacco Plain Packaging Bill 2011 passes the Australian Senate.

21 Nov 2011: Final passage of amended Tobacco Plain Packaging Bill through House of Representatives.

Vote on Tobacco Plain Packaging Bill as amended by the Senate. The Bill passes the Australian Parliament including amendments to extend the timeframe for implementation.

Official Hansard No 18, Monday 21 November, Forty-third Parliament, First session--Fourth period 2011:12913.

1 Dec 2011: Signing into law by Governor General of Tobacco Plain Packaging Act 2011 and Trade Marks Amendment Plain Packaging Act 2011.6

7 Dec 2011: Tobacco Plain Packaging Regulations made (registered 12 December, tabled in the House of Representatives and Senate on 7 February 2012).7

22 Dec 2011: Release of new Information Standard specifying enlarged graphic health warnings for tobacco products Competition and Consumer (Tobacco) Information Standard 2011.8

8 Mar 2012: Making of Tobacco Plain Packaging Amendment Regulation 2012, tabled in House of Representatives and Senate on 14 March 2012.

Oct—Nov 2012: Some packs in plain packaging start to appear in retail outlets.

1 Dec 2012: From this date, all tobacco packages in Australia had to appear in plain packaging as specified in the Tobacco Plain Packaging Act 2011.

Figure 11.10.29

Figure 11A.4

Packs of British American Tobacco Australia's Winfield Blue (the leading brand of cigarettes in Australia) and Philip Morris Australia's Marlboro Red (the leading brand of cigarettes internationally), purchased in Carlton Victoria November 2012


Source: Quit Victoria 2012
 

Relevant news and research

For recent news items and research on this topic, click here.(Last updated January 2019)

 

 

References 

1. Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011: Explanatory memorandum. 2011; Available from: http://www.comlaw.gov.au/Details/C2011B00128/Explanatory%20Memorandum/Text

2. Preventative Health Taskforce. Australia: The healthiest country by 2020: A discussion paper. Preventative Health Taskforce: Commonwealth of Australia, 2008. Available from: http://webarchive.nla.gov.au/gov/20160923060312/http://www.preventativehealth.org.au/internet/preventativehealth/publishing.nsf/Content/discussion-technical-1

3. Community Affairs Legislation Committee. Plain tobacco packaging (removing branding from cigarette packs) bill 2009 (presented out of session on 26 August 2010). 3219 28 September Canberra: Commonwealth of Australia, 2010. Available from: https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:%22chamber/hansards/2009-08-20/0023%22.

4. Freeman B, Chapman S, and Rimmer M. The case for the plain packaging of tobacco products. Addiction, 2008; 103:580−90. Available from: http://www.ncbi.nlm.nih.gov/pubmed/18339104

5. Senate Standing Committee on Legal and Constitutional Affairs. Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 {provisions}. Canberra: Parliament of Australia, 2011. Available from: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed_inquiries/2010-13/trademarksamendment/index.

6. Tobacco Plain Packaging Act. No. 148 2011; Available from: http://www.comlaw.gov.au/Details/C2013C00190.

7. Tobacco Plain Packaging Regulations, 2011. Available from: http://www.comlaw.gov.au/Details/F2013C00801.

8. Competition and Consumer (Tobacco) Information Standard. 2011; Available from: http://www.comlaw.gov.au/Details/F2013C00598.