BAT Seeks Australia Documents for Fight Against Plain Packaging

British American Tobacco Plc (BATS) urged an Australian appeal court panel to order the release of government documents to help it fight a proposed law to remove all manufacturers’ markings from cigarette packs.

The Dunhill maker needs to deploy the documents “in its efforts to persuade members of parliament that the legislation should not be passed,” Allan Myers, British American Tobacco’s lawyer, told the three-judge panel in Melbourne today. A debate on the law is scheduled for next month, he said.

The Australian proposal is the first in the world aimed at banning logos and color variations on cigarette packages. New Zealand, Canada and the U.K. had considered the move but dropped it out of concern it would be illegal, British American Tobacco said. The proposal may infringe international trademark and intellectual property laws, said the producer of Pall Mall and Australia’s best-selling cigarette brand, Winfield.

Australia had considered plain packaging for cigarettes in the mid 1990s and on Dec. 14, 1995, the government received a 13-page report from a commission that studied the proposal, Myers said. The government released a summary and in 1997 it also issued a response to a separate Senate report, he said.

The background documents that led to the government’s decision not to go ahead with the earlier plan weren’t released and the government says they’re privileged and must remain confidential.

Public Health

Health Minister Nicola Roxon said in April that she’s acting in the interest of public health and has the support of most people.

British American Tobacco “suspects that Minister Roxon hasn’t released the legal advice because it’s likely to demonstrate her plain packaging laws are flawed,” the company said in a May 31 statement.

At issue is whether with the publication of its response to the Senate report the government gave up its right to keep the documents confidential.

The company says “if this is provided, Parliament will be better informed,” Chief Justice Patrick Keane said today. “I’m not sure that’s the role of the judiciary.”

Justice Garry Downes, another panel member, said he was worried about the court taking over the role of the Freedom of Information panel that denied British American Tobacco’s request.

“A finding of fact is one thing, saying this document should be made available is another,” Downes said. “We would be making an administrative decision.”

Decision Reserved

The judges reserved a decision and both the company and the government agreed to provide additional written submissions before Aug. 10.

Under the proposed law, the name of the cigarette brand would be printed in a uniform font at the bottom of the package. The legislation, if passed in parliament, will take effect Jan. 1.

“This would clearly undermine the value of manufacturers’ trademarks and destroy the goodwill built up over many years in consumer brands,” British American Tobacco said in a June 6 submission to the government. “Plain packaging will frustrate brand identification and consumer choice, making smuggled branded product more acceptable to consumers.”

British American Tobacco said in the submission to the government that it has about 45.6 percent of the legitimate cigarette market in Australia.

The company pays about A$4.5 billion in federal taxes annually, British American Tobacco said.

The government plans to spend more than A$10 million ($10.7 million) on legal fees fighting opposition to the proposal, British American Tobacco said, citing documents obtained through the FOI process.

The case is British American Tobacco Australia Ltd. v. Secretary, Department of Health and Ageing. VID314/2011. Federal Court of Australia (Melbourne).

To contact the reporter on this story: Joe Schneider in Sydney at jschneider5@bloomberg.net

To contact the editor responsible for this story: Douglas Wong at dwong19@bloomberg.net

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