The latest legislative developments in the

tobacco sector in Thailand are worrying the tobacco industry but also the food

and beverage sectors as similar regulations may follow.

The content of the draft Thai Tobacco

Product Control Act ("TPCA")

regulating the packaging and labeling of tobacco products has first been introduced

in 2010 under a different Bill named draft Tobacco Consumption Control Act (or “TCCA”),

and shows the ever growing restrictions imposed on the tobacco industry in

Thailand.

The increased size of shock-pictures and

health warning statements covering the package of cigarettes is one example.

Compared with its neighbors, Thailand is leading the way since 2014 with 85% of

space coverage (previously, 55%).

Key

provisions of the draft TPCA

of the minimum age for the purchase of cigarettes to 20 years

(instead of 18 years currently) in an attempt to reduce youth smoking (Article

26);

of the sale of individual cigarettes and in a number smaller than 20 for

the purpose of limiting access to, and discouraging purchase of cigarettes

(Article 39);

product sales restrictions such as prohibition of cigarette vending

machines (Article 27);

definition of tobacco products to cover any item

containing nicotine, including hookahs and electronic cigarettes (Article 4);

rules on advertising of tobacco products such as prohibition of

the display of the names or marks of tobacco products, or of the manufacturer

or importer, on tobacco products or non-tobacco products and any logo or symbol

that might cause the public to understand that such names or marks are the

names or marks of the tobacco products or of the manufacturer or importer, prohibition

of sponsorship and merchandising as forms of indirect advertisement (Articles

30-36);

all ingredients in tobacco products to the

MOPH for the purpose of obtaining the Certificate of Notification of the list

of components of tobacco products, a necessary document for the sale of tobacco

products in Thailand (Article 37). Since the list would be published, this disclosure

requirement would jeopardize trade secret protection that may be granted to the

composition of tobacco products (one condition of the protection being to

remain secret);

marketing costs and incomes generated from the sale of tobacco products in

Thailand and any other relevant information (Article 40);

features of tobacco products’ packaging (size, color, symbol, label, trademark,

pictures and messages (Article 38[1]). “Plain packaging” – also known as homogenous, generic or

standardized packaging- refers to the

appearance of all tobacco packages in a standardized manner: the cigarette

packaging is a single color and the

brand name is reproduced in a standard

font, size and location.

Public

Health vs. Private Rights: the battle of the Giants

The Thai Ministry of Public Health is

defending the new text in the name of public health.

For the tobacco industry, this new law (and plain packaging laws

in general) are violating intellectual property rights and international

treaties, encouraging illicit trade and making it difficult for consumers to identify the product’s genuine source.

The Thai Ministry of Commerce is trying to conciliate the interests of

both sides: whilst aiming to discourage, and help consumers quit smoking, the

new Bill should not affect the rights of the trademark owners and trade secrets

as protected under the Thai Trademark and Trade Secret Acts and should comply

with the international agreements regarding trade and intellectual property.

These concerns

are shared by some WTO Member Countries such as Mexico,

Honduras, the European Union, China, the United States of America and Brazil

which raised a series of questions to the Thai representatives during the last WTO’s

Trade Policy Review in November 2015. When asked how to ensure a fair competition environment for the sale of tobacco products, what would be the impact on trademarks currently used on

tobacco products or whether similar plain packaging regulations will be

extended to alcoholic beverages, Thailand reaffirmed its commitment to the WTO

Agreement on Trade-Related Aspects of Intellectual Property Rights and public

health policy.

Current legislative process: 2017, the turning point

for plain packaging in Thailand?

The Bill is

currently pending consideration by the National Legislative Assembly. The decision is

expected by March 2017 (subject to

delays).

The WTO ruling

in the disputes relating to Australia’s tobacco plain packaging measure has been postponed to May 2017. A decision in favor of the

Australian government will likely pave the road for similar regulations in

Thailand. To date, plain packaging is effective in the United Kingdom since May

2016 and in France since January 1, 2017 (for retailers, manufacturers had to

comply by May 2016).

Whist it will be interesting to see how this

story unfolds, the tobacco companies

will probably not go down without a fight should the Bill be passed in Thailand,

as per one of the lawsuits previously brought by Philip Morris (Thailand),

British American Tobacco and Japan Tobacco International against the Ministry

of Public Health before the Supreme Administrative Court in 2013 to (unsuccessfully)

prevent the implementation of the larger health warnings.

Mrs. Maturos

Piyachotisukij, Head of Patent Department, Vidon & Partners

Ms. Noemie

Sancelme, Coordinator/Manager of Overseas Department, Vidon & Partners

Ms. Mathilde

Tachon, Consultant, Vidon & Partners

They can be

contacted at [email protected]

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[1] “The manufacturer or importer of

the Tobacco products for sale in the Kingdom shall arrange for the Package of

the Tobacco products or Tobacco products to have the size, color, symbol,

label including the character of the displaying of trademark, symbol, picture,

and Message in compliance with the criteria, methods and conditions as notified

by the Minister according to the suggestion of the Directing Commission

before taking them out of the manufacturing site or before importation into the

Kingdom as the case may be.

No person shall be allowed to sell the

Tobacco products which are not in the Package of Tobacco products or do not

display the trademark, symbol, picture and Message as prescribed in paragraph

one”.

The initial disputed

provision stating that « The law

on intellectual property shall not apply to the display of the Package under

this Section” has been deleted.