Matt Carberry (kingpin248) wrote,
Matt Carberry

Australia establishes a new beachhead in the War on Tobacco

On Wednesday, the High Court of Australia rejected a challenge from tobacco manufacturers to packaging restrictions set to go into effect in December. As reported by the Melbourne newspaper The Age, the ruling is being lauded as "a massive win for public health." Actually, to term these regulations as "restrictions" doesn't do justice to that word. I'd characterize them as the American "Nutrition Facts" label on steroids. Cigarettes in Australia will be sold in essentially identical packaging, with large ugly pictures of the unpleasant consequences of smoking, and with brand names in generic type on a brown background chosen specifically because it's supposed to be the ugliest color to the eye.

The Age calls this new design "plain packaging." At this juncture, I had been getting set to skewer the paper for making a mockery of the word "plain" - but I'm glad I actually looked at the dictionary first. Based on the usage of "plain" to mean "without adornment or show," this new packaging is anything but. But that word can also be taken to mean "clear," "distinct," "self-evident," or "free from ambiguity." The graphic nature of the pictures and the size of the type in the warnings certainly qualify the new cartons under any of those definitions.

The tobacco companies challenged the new packaging regime under section 51(xxxi) of the Australian Constitution, which allows the government to acquire property "on just terms." It's effectively the equivalent to a Fifth Amendment challenge in the United States. Their case failed because they were unable to show that any property was directly taken from them; it would seem that intellectual property doesn't qualify for this purpose. (The High Court delivered only a summary, leaving the reasoning to be released in the future.) Nor does any potential effect on public health suffice, notwithstanding the savings that might accrue to the government through lowered medical costs, since those would be indirect benefits (and may not materialize at all). A similar challenge here probably also wouldn't work, as the prevention of smoking falls well within the range of a public purpose - which, according to Kelo, is equivalent to the "public use" specified in the Constitution.

Our First Amendment, however, provides a divergence. It exists here in the States, and has been found by a Federal judge in the D. C. Circuit to directly apply to the FDA's attempt to place graphic warnings on packages. In R. J. Reynolds Tobacco Co. v. FDA, Judge Leon held that the size and contest of proposed graphic warnings on cartons mean the tobacco companies "are literally forced to act as the Government's mouthpiece." (p. 17) By contrast, no explicit constitutional guarantee of freedom of speech exists in Australia. Their framers left that to Parliament, and so the thumb comes down on the scales in this area of the marketplace of ideas - and potentially any other. If I have any readers Down Under, I remind them and their legislators of the words of Justice Jackson in Beauharnais v. Illinois: "No group interest in any particular prosecution should forget that the shoe may be on the other foot in some prosecution tomorrow."

I have never, ever, used a tobacco product in my life, and consider that a "red line" over which I won't cross. Smoking cessation, and the reduction of smoking within the population, are worthy goals, and I support them. But the old adage that the ends cannot justify the means most definitely applies in this instance - especially when the means can be rightly characterized as a thinly veiled attempt at social re-engineering.

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