Cape Town - A Stellenbosch law professor says plans to restrict the use of logos and brand names on cigarette packets could be unconstitutional.
Professor Owen Dean, chairman of Intellectual Property Law at Stellenbosch University, said the compulsory introduction of plain packaging would deprive tobacco companies of the use of property - their trademarks. And if the government went ahead with the plan, it could end up paying tobacco giants millions of rands in compensation.
Dean said the proposed legislation could be unconstitutional as no law could permit the arbitrary deprivation of property.
After a lengthy public consultation process, the National Department of Health is planning to introduce the use of graphic images on cigarette packets “soon”.
The images will include pictures of rotten teeth and various forms of cancer, as part of department plan to reduce smoking.
The legislation also proposes the prohibition of promotional text appearing on packs, with the only distinguishing marks being the brand and product name in a standard text and colour.
Health warnings would be increased from 30 percent to 75 percent of the front of the pack, and 90 percent of the back.
Joe Maila, spokesman for Health Minister Aaron Motsoaledi, said that while the department was still putting the regulations together, they were convinced they would pass the constitutionality test.
“We are not deterred by those who raise constitutionality questions. Countries such as Australia and the US that have gone the same route were also taken to court by tobacco companies but they have won.”
Australia has compelled tobacco companies to pack their products in identical olive-brown boxes bearing the same typeface and health warnings, and images of ill smokers.
Dean said South Africa’s situation was different because our legislation was worded differently and did not allow “arbitrary deprivation of property”.
Peter Ucko, a board member of the Central Drug Authority, an advisory body responsible for fighting substance abuse in South Africa, disagreed. He said the introduction of plain packaging would not deprive the tobacco industry of any property as legislation was meant to curb brazen promotion of tobacco products that made cigarette smoking attractive.
“The legislation is not taking away any rights. It is meant to protect people from one of the last avenues the tobacco industry has, which is to aggressively market and promote their brands to appeal to smokers and children.”
Ucko said ultimately the court would determine if the government was right or wrong.
Cape Argus