Positions of british american tobacco



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[EMBLEM]

British American

Tobacco

gabon

B.P. Libreville

Gabon
Phone: (241) 73 61 49/73 03 50

Fax: (241) 73 69 73


POSITIONS OF BRITISH AMERICAN TOBACCO
I. ON THE HEALTH WARNING
Pursuant to Administrative Order No. 006/MCIPMEPMIA/CAB/SG/DGCN of September 29, 1998, it is requested that each pack of cigarettes bear a health statement at least 2 mm high on each of the lateral surfaces of the aforesaid pack. In the draft law under discussion, it is required that the health statement occupy 60% of the front surface, and 65% of the back surface of a pack of cigarettes (Article 5).
Moreover, all advertising materials must include this health statement on 65% of their total surface (Article 8).
At British American Tobacco (BAT), we believe that an appropriate health warning should appear on all packages of tobacco products. We recommend distinct, legible health warnings of an appropriate size that ensure the clarity of the message. We believe that health warnings covering 30% to 50% of the main surfaces can provide adult smokers with the appropriate information, while respecting the requirement of the Framework Convention on Tobacco Control (FCTC) in this matter.
1. The health warning and intellectual property


    1. National legislation: Constitutional rights

The proposed increase in the size of the health warnings could possibly constitute a violation of constitutional rights in light of the Constitution of Gabon, such as the fundamental right to property and the right to communication/freedom of commercial expression.


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B.P. Libreville

Gabon
Phone: (241) 73 61 49/73 03 50

Fax: (241) 73 69 73




    1. International law




  1. Agreement of the African Intellectual Property Organization (Organisation africaine de la propriété intellectuelle): OAPI (the Bangui Agreement)

In ratifying the Agreement reviewed by the OAPI on February 24, 1999 (the Bangui Agreement), Gabon recognizes that a registered brand is an intangible asset that could be used to earn a profit from sales. In consequence, the freedom to use a registered brand is a major financial asset.


If a trade mark is an intangible asset, it is possible that the latter has been compromised (and) or (or) affected. The OAPI Agreement, approved and ratified by Gabon, recognizes, moreover, that the trade mark is a right of intellectual property. Clause 7 of Annex III of the Bangui Agreement stipulates that: “The registration of a mark confers upon its owner the exclusive right to use that mark, or a similar sign for the products and services that it has designated, as well as for similar products or services.”
The size of the health warnings in bold characters on the cigarette pack proposed by the draft law constitutes an assault on this exclusive legally recognized right to use a mark.


  1. Agreements of the WTO

The introduction of health warnings in bold / extra large characters could raise serious questions regarding their legality in light of national legislation, as well as international public law. It is important to control the legality of labeling measures proposed for tobacco packaging with regard to Gabon’s obligations, in light of WTO agreements, and in particular the Agreement on Aspects of Intellectual Property Relating to Trade (“ADPIC”) and the Agreement on Technical Barriers to Trade (“ATBT”). On this last point, it is interesting to note that, in the context of a recent meeting on the ATBT in Geneva, a certain number of member countries have expressed reservations on the proposal of the Thai government concerning the introduction of graphic health warnings on


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B.P. Libreville

Gabon
Phone: (241) 73 61 49/73 03 50

Fax: (241) 73 69 73


the contents of alcoholic beverages because it involves more restrictive commercial practices that are contrary to the accomplishment of a policy objective.


  1. Treaties for the protection of investments

Pursuant to the foregoing, as we have seen in the appeal recently filed against Uruguay at the International Center for Settlement of Investment Disputes (“ICSID,” an agency of the World Bank), the measures for health warnings envisioned by this draft law may possibly be construed as prejudicial to the value of companies’ investments, and as an impediment to their ability to use their marks; and as such, they may constitute a possible violation of the obligations arising from treaties for the protection of bilateral and multilateral investments ratified by Gabon.


2. ANALYSIS OF THE IMPACT OF AN INCREASE IN THE SIZE OF HEALTH WARNINGS ON THE CONSUMPTION OF TOBACCO
2.1 Absence of evidence to support the reduction of consumption following an increase in the size of health warnings
There is no tangible evidence demonstrating the effectiveness of increasing the size of the health warnings on packs. Most studies on the matter have arrived at conclusions as mistaken as they are confused. Furthermore, it has been proven that in African countries where the large majority of the population is illiterate, these warnings do not enable the government to achieve the intended objective.
Deloitte Report, May 2011
Pursuant to the evaluation of the regulations regarding the packaging of tobacco products in 27 countries during a period of 14 years, Deloitte concludes “that there is no direct, statistically significant relationship between regulations concerning

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B.P. Libreville



Gabon
Phone: (241) 73 61 49/73 03 50

Fax: (241) 73 69 73


the packaging of tobacco products, including the size and type of government health warnings, and changes in the legal consumption of tobacco.”
British Ministry of Health, 2010
The British Ministry of Health ordered a study to examine the effects of its implementation of graphic health warnings. The report arrives at a number of important conclusions according to which the introduction of graphic health warnings on packages of cigarettes in Great Britain has not had any impact on the rate of prevalence of tobacco use, the overall consumption of cigarettes or the importance of health warnings.

Study on health warnings in Canada
In Canada, according to the empirical data, the change of health warnings in 2001 (from a textual health warning covering 25% to a graphic warning covering 50% of the front and back surfaces) did not modify the behavior of Canadian smokers.
2.2 Risk of an increase in the illegal tobacco trade
The increase of the size of health warnings would facilitate counterfeiting and smuggling, and thus the distribution of products through non-regulated criminal networks, which are not taxed, to which underage smokers and the most vulnerable have easier access; which further disrupts enforcement efforts against the illegal trade in tobacco.

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B.P. Libreville



Gabon
Phone: (241) 73 61 49/73 03 50

Fax: (241) 73 69 73


Furthermore, the very small space remaining for the posting of brands, as a consequence of these large labels with health warnings, would have the effect of making legitimate the indiscernible brands of counterfeit products. We believe that this factor would incite criminal elements to enter into the market, not only to deceive consumers, but also to deprive the government of its revenue.
CONCLUSION
Prior to undertaking new measures, the government should develop a better understanding of the problem and analyze the real impact of this measure [on the consumption of tobacco].
The Deloitte report casts doubt on the effectiveness of laws concerning tobacco packages. “In accordance with good regulatory practices, prior to a decision on the implementation of new forms of regulation concerning packaging, we suggest that more aggressive research be undertaken by governments in these areas of impact.”
The introduction of health warnings in bold / extra large characters could raise serious questions regarding their legality in light of national legislation, as well as international public law. Furthermore, the increase of health warnings could instigate unexpected consequences, such as a resurgence of illegal commerce.
The lateral surfaces of cigarette packs in Gabon include the statement “SERIOUSLY HARMFUL TO HEALTH.” Adult smokers have made the conscious decision to smoke in full awareness of the risks. Once the decision to smoke is taken by an adult smoker, the pack provides adult consumers with pertinent information to enable them to establish the differences among various tobacco products and brands. This has to do with the rights of the owner of the brand.
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B.P. Libreville

Gabon
Phone: (241) 73 61 49/73 03 50

Fax: (241) 73 69 73





  1. ON LIABILITY

The principle of liability is established by Gabon’s Civil Code. Over and above this principle, it presents the conditions as well as the different applicable regimens.


The article on liability has a superfluous character to the extent that it cannot create a regimen of liability overriding that which is enunciated by the fundamental principles of the law of liability.
Furthermore, our recommendation would be that this article should be suppressed from the draft law.
To keep such a provision would have the consequence of prompting and encouraging the filing of make believe complaints, which moreover would not be able to succeed due to the impossibility of the plaintiffs’ establishing in court the required elements for the establishment of liability – with the understanding that tobacco is a legal product, and prior authorization is necessary to engage in this activity; furthermore, respect for the established laws is a requirement that will brook no compromise, and the criminal liability of tobacco companies, as for any other company, must be based upon the Civil Code.

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BAT Gabon RCCM No. 2003E00063 – Statistique No. 0862685H

A member of British American Tobacco Group





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