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Turkey to Require Plain Packaging on Tobacco Products

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It introduced new regulations for tobacco products including plain packaging requirement. The main purpose of the Law is to reduce the attractiveness of the trademark in tobacco products, to prevent tobacco addiction and to protect public health.

Plain packaging requirement dictates all tobacco product packages to have a uniform color with a standard shape, size and packaging materials. The brand names are fixed with the standard typeface. The promotional elements of the brands are not allowed to be placed on the packages. The packages must also contain mandatory information such as health warnings and tax stamps.

Article 24 of the Law has amended the percentage of Article 4 (4) of the Law no. 4207 from 65% to 85%.  As a result of the new provision, health warnings messages and images will cover both sides of packages and this coverage will be at least 85% of the package. Moreover, if the tobacco products do not have these warning messages, they will not be imported or sold.

Additionally, tobacco products produced in Turkey or imported are offered for the market in the standard package that is designed in the same way, including the brand, its font and size, its position on the package, the color of the packages. The brand is written on only one side of the package and no more than five percent of the surface. The logo, symbol or other marks of the brand cannot be placed on the packages. These rules apply to the boxes of tobacco products that contain more than one package.

With all these changes, plain packaging requirement for tobacco and tobacco products has been adopted in Turkey. Further detailed regulations will be enacted by the Ministry of Agriculture and Foresty (‘Ministry’), on consultation with the Ministry of Health. Pursuant to Article 25 of the Law, the regulations shall be announced within one month from the date of entry into force of the Law (Though the one month period has already passed, as of February 5, 2019, no regulation has been enacted yet).

According to provisional article 25, tobacco products produced in Turkey or imported before the date of entry into force of the Law, will be harmonized with the new provisions in seven months. This period can be extented up to 6 months by the Ministry. Finally, Article 23 of the Law has amended paragraphs 6 and 7 of Article 3 in the Law no. 4207. According to the new provision, the use and display of tobacco products in television programs, films, series, music videos, commercial and promotional films, movies and theaters; or the use of tobacco products and images for commercial purposes or for advertising purposes in the Internet, social media or similar public environments (including any place health, education, culture and sport activities take place) are prohibited.

Plain Packaging and Trademarks Rights

Like other countries, violation of trademark rights has been a controversial issue with the law requiring plain packaging on tobacco and tobacco products in Turkey as well.Though Turkey’s decision to require plain packaging on tobacco and tobacco products has not been opposed yet, plain packaging rule has been opposed by the relevant parties both in international and jurisdictional levels in and by other countries.

For example, four countries filed a complaint against Australia in the World Trade Organisation. (WTO) on May 5, 2014.  WTO Panel has ruled against complaints brought by several countries concerning Australia’s tobacco packaging law, which implements the WHO Framework Convention on Tobacco Control and its Guidelines. The panel decided that Australia’s policy on plain packaging is consistent with WTO law.[1] In addition, The World Health Organization (WHO) and the WHO Framework Convention on Tobacco Control (WHO FCTC) Secretariat provided the WTO Panel with a brief. According to this brief and Article 11 and Article 13 of FCTC, the parties can adopt measures as plain packaging to increase the effectiveness of their policies.

In addition to complaints in WTO, the tobacco industry has brought legal challenges against some of the countries introducing plain packaging, but legal claims challenging plain packaging laws in countries such as France, Norway, the United Kingdom, Northern Ireland, Australia have been dismissed.

According to the tobacco manufacturers, the plain packaging violates the agreements protecting trademark and other intellectual property rights such as TRIPS (Trade-Related Aspects of Intellectual Property Rigths) and Paris Convention. TRIPS Article 17 regulates that member countries of WTO have the right to impose certain restrictions on trademark and other intellectual property rights if there is a public interest. However, tobacco manufacturers argue that plain packaging is not necessary practice to ensure the public interest, although the aim of this implementation is to reduce to using tobacco by eliminating the attractiveness of tobacco products. According to the tobacco industry, there is no certainty that plain packaging decreases  tobacco consumption or promotes the public health.

Nevertheless, countries argue that the use of the trademark on tobacco products is not completely prohibited by plain packaging, only, some restrictions are imposed on the trademark's right and freedom of use. On the other hand, since the plain packaging hinders two main functions of the trademark (promoting the product and indicating the product’s origin), tobacco manufacturers state that this regulation directly targets the distinctiveness of the trademark which is the main purpose of the brand. If the distinctive function of trademark cannot be used on tobacco products, the basis of competition in the market will change.

Another argument to the plain packaging is that it may decrease the prices of tobacco products becausethe packaging costs will be less for manufacturers. Thus, contrary to the measure taken, decrease in the prices may stimulate the demand for tobacco products. It is also argued that the plain packaging will increase illegal exports of tobacco products. Since some consumers prefers to purchase tobacco products with regular packaging, they may be able to turn to illegal markets in order to reach such packages. In addition, since the color, shape and logo of the brand will not be used in the packages, it will be easier to produce a counterfeit of the tobacco products. As a result, discussions over the plain packaging focus on the balance between the public health and the intellectual property rights. On the one hand, tobacco industry argue that this implementation violates national and international rules related to intellectual property rights; on the other hand, countries emphasize the need for implementation in the fight against tobacco and tobacco products. While this dilemma continues, many questions come to mind as whether or not the restrictions will include cigarettes in the packages because the regulations for the details of plain packaging is still not made.

[1] https://www.who.int/tobacco/wto-panel-rejects-claims-tobacco-plain-packaging-australia/en/.

Author: Suzan Tekin

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