Plain packs are back on the agenda. And with health minister Jane Ellison asking leading paediatrician Sir Cyril Chantler last week to chair the independent review into their potential impact on public health - particularly for children - many in the tobacco trade believe the government has already made its mind up. The fact it is also lining up enabling legislation as an amendment to the current Children and Families Bill, which could see plain packs introduced in 2015 without the need for primary legislation, would certainly seem to support that view - as would the understanding that David Cameron has been a champion of plain packs from the start.

So are plain packs a done deal? Chantler has been briefed to pay particular attention to the impact of plain packs in Australia, where the policy has been in place for exactly a year. This is not just going to inform the government as to whether to push ahead. His evidence will be scrutinised forensically by any parties looking to challenge the government’s decision.

“Hard evidence is needed that plain packs for tobacco will reduce the uptake of smoking in children if the government is to survive inevitable legal challenges”

Paul Medlicott

How ‘independent’ the review is or whether the government has already made its mind up is therefore not the issue, says Paul Medlicott, partner at law firm Addleshaw Goddard.It is the evidence that will be crucial.

“Plain packaging legislation in the UK would inevitably face significant legal challenges,” he explains. “Hard evidence is needed that plain packs for tobacco will achieve the desired result, in particular reducing the uptake of smoking in children. The business impact of these packaging changes will be substantial and if the government wants certainty that it can affect this change for the long term, it should ensure that any legislation can survive a later legal challenge without any further u-turns.”

To be certain of this he suggests the government may want to wait until the outcomes of the various legal challenges to the Australian legislation -currently filed with the World Trade Organization - have been resolved. So far five countries - Ukraine, Honduras, Cuba, Dominican Republic and Indonesia - have initiated proceedings at the WTO against the Australian law.

Indeed in a statement reacting to the review last week, Imperial Tobacco was quick to flag up these challenges in a veiled warning to the UK government that it will not be willing to push them through without a fight. The countries state that plain packaging violates international rules on intellectual property and international trade obligations.

As things stand, the WTO Dispute Settlement Body has agreed to establish a panel to hear Honduras’ complaint, Indonesia has requested consultations with Australia - the first step in the dispute settlement process - and Ukraine has reactivated its claim. All suggesting months of legal wrangling.

Out of sight anyway

Plain packs could become law as soon as 2015. And ACS CEO James Lowman argues the simultaneous introduction of both plain packs and the second phase of the display ban in the same year would put a huge burden on smaller retailers. But the display ban could also actually lessen the impact of plain packs.

Says one industry source: “How is the government expected to assess the impact of the display ban if it pushes plain packaging through before the ban has been fully rolled out?”

The complaints are based around Article 20 of the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement. This protects trademarks against being “unjustifiably encumbered by special requirements such as use in a manner detrimental to its capability to distinguish the goods or services of one undertaking from those of other undertakings”.

The key to this rule, argues Medlicott, is that any impact must be “demonstrably justified to protect public health” - meaning it would reduce the number of smokers and in particular reduce the uptake of smoking by young people.

So what evidence is Chantler likely to find? The anti-smoking lobby is convinced there is evidence already emerging in Australia that plain packs work. It cites a study of smokers in the Australian state of Victoria, which kicked off when the plain packs came into use. The study found that users of plain packs perceived their cigarettes to be of lower quality and that they made them more likely to consider quitting.

The tobacco industry is equally convinced that compelling evidence does not currently exist and that Chantler will not find it before he is due to report back by March.

As well as the report from Victoria, it rejects a study that asks consumers whether they found the branded packs more attractive than olive green packs with large graphic health warnings. “The fact something is attractive doesn’t necessarily bring on the next phase, which is ‘I’m going to use it’,” argued JTI UK MD Jorge da Motta in a recent interview in The Grocer.

And the international tobacco industry is also building a body of evidence to show plain packs have led to a rise in the illicit trade down under.

In response to that, the health lobby argue that a KMPG report funded by the industry had exaggerated the impact of plain packs.

What seems clear is that the government will have to come up with more robust evidence than is currently available if it wants to prove its case. If it does not have this and decides to push ahead, it could be a lengthy and costly process - although as the Australian example shows, legal challenges need not delay the introduction of plain packs if the government is confident of victory down the line.