Sky News Australia, 8 de febrero de 2012

Govt not 'stealing' tobacco brands

Updated: 22:08, Wednesday February 8, 2012

The federal government has responded to big tobacco's High Court claim that plain packaging laws are unconstitutional by arguing the Commonwealth isn't acquiring manufacturers' brands and therefore doesn't have to pay compensation.
The government, in its defence filed with the court this week, insists it is restricting the use of brand names and logos not taking them over.
'None of the rights alleged to be held by the plaintiff have been acquired from it,' the statement of defence says.
'(Plain packaging) does not confer upon the Commonwealth, or any other person, any identifiable and measurable benefits or advantages.'
Further, the Commonwealth claims that even if big tobacco's property rights are being acquired 'those rights were always and are subject or susceptible to regulation under law' - including by the plain packaging legislation.
Manufacturers Philip Morris, British American Tobacco, Imperial Tobacco and Japan Tobacco International want the court to rule that the government's move to force all cigarettes to be sold in drab olive-brown packs from December breaches the constitution.
They argue plain packaging involves the acquisition of their property - in the form of brand names and logos - without just compensation.
But Attorney-General Nicola Roxon insists the Commonwealth is on strong legal ground.
'I can tell you, if the argument is that we are wanting to acquire their property, the Commonwealth has no desire, no interest and no need to own any sort of tobacco advertising,' Ms Roxon told reporters in Canberra.
'(But) we certainly want to restrict and regulate the use of their brands and logos and we intend to argue that case strongly within court.'
The defence filed this week responds to Philip Morris's statement of claim. But all the manufacturers are running similar arguments.
The Commonwealth has countered that even if big tobacco could prove the government was acquiring their property rights the manufacturers still wouldn't win in court.
That's because, according to the statement of defence, the purpose of the plain packaging legislation - namely to improve public health - is within the scope of the Commonwealth's legislative power under the constitution's commerce, trade and external affairs powers.
A lawyer who's had more experience than most fighting cigarette companies in court, Peter Gordon, told AAP last year that Philip Morris was on very shaky legal ground.
'The suggestion that the Commonwealth is trying to take away the property rights of tobacco companies is of course a farcical proposition,' he said.
'No one's suggesting they're not allowed to own these trademarks, they're just suggesting they're not allowed to use them in a way which improperly promotes cigarette use among kids.'
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