Turkey: Plain Packaging For Tobacco Products Under Turkish Law
Arguably, plain packaging legislation to tobacco undermines the objective of trademarks. The possibility of legislatively mandated plain packaging for tobacco products in Turkey also raises legal issues with how such restrictions would fit into the existing legislative framework. Specifically, those provisions which protect intellectual property and commercial stability under the Turkish Constitution, as well as the criteria for third parties to initiate cancellation actions based on non-use.
What is plain packaging legislation?
In general terms, plain packaging legislation for tobacco products requires all tobacco packaging to be the same color, with text being the same size, style and color. The intention is to prevent consumers becoming familiar with and recognizing tobacco brands, as well as decreasing competition and preventing promotion of tobacco companies via packaging.
Packaging restrictions are particularly important to tobacco producers in countries with comprehensive bans on advertising and promotion, such as Australia, England and Turkey. Such bans mean that the product's package itself is the primary vehicle for communicating brand messages.
Related legislation requires producers to display written and visual warnings about health issues caused by tobacco products.
Global consideration and introduction of plain packaging legislation
Discussion and research into legislatively mandated plain packaging requirements for tobacco products has existed since 1989, when the New Zealand Department of Health suggested that all tobacco packs should be white with plain black text, absent of any color or logos. Since then, discussions and research into plain packaging have spread around the world, including Canada, England, Ireland, India and the European Commission.
Australia has recently introduced plain packaging legislation, with products on sale since December 2012 being required to have plain packaging. Australia is currently working through the legal issues this legislation has raised, including defense of a complaint made by the governments of Honduras and Ukraine to the World Trade Organization. The complaint claims that the Australian legislation is contrary to a WTO intellectual property agreement.
Arguments in favor of plain packaging for tobacco products
Supporters of plain packaging for tobacco products argue:
The color, logo, form and device elements on tobacco packaging increase the possibility of addiction, entice youth, as well as lead consumers to think that some products are less harmful than others.
Removing the distinguishing elements from tobacco packaging will decrease smoking rates, particularly among teenagers.
It is a human right to achieve and maintain high health standards, with the state being obliged to support and protect public health, in this context by introducing plain packaging requirements.
Plain packaging schemes conflict with the Turkish Constitution
The Turkish Constitution plays a major role in the Turkish legal framework, with all other laws and regulations being required to be interpreted in line with its provisions. Certain obligations and rights stated by the Constitution appear to conflict with plain packaging schemes for tobacco products:
Although not explicitly stated, it is widely accepted by judicial decisions that the Turkish Constitution protects intellectual and industrial property rights on the basis that they are property rights (Article 35). If Turkey introduces plain packaging requirements, tobacco packaging would no longer be permitted to display logos, color devices, diagrams and graphics. As a result, the property rights of tobacco companies would be negatively impacted.
The Turkish Constitution requires the state to take measures to ensure private enterprises operate with security and stability (Article 48). Arguably, prohibiting or restricting enterprise from promoting themselves through use of trademarks would be a breach of this Constitutional obligation.