False and Misleading Advertising

Recently Philip Morris challenged Australia’s tobacco plain packaging legislation citing a 1993 agreement between the governments of Australia and Hong Kong for the promotion and protection of investments.

Philip Morris Asia argued that Australia’s tobacco plain packaging measure constituted an expropriation of its Australian investments in breach of Article 6 of the agreement.

It further argued that Australia’s tobacco plain packaging measure was in breach of its commitment under Article 2(2) of the agreement to accord fair and equitable treatment to Philip Morris Asian investments.

It also asserted that plain packaging constituted an unreasonable and discriminatory measure and that Philip Morris Asian investments had been deprived of full protection and security in breach of the agreement.

Me thinks Philip Morris should have taken a different route.

They could have argued false and misleading advertising on two counts by the Australian government, thus breaching their own legislation on the subject:

1. Firstly, there’s nothing ‘plain’ about the packaging, and

2. Secondly, the government’s claims of health issues relating to cigarettes are grossly overstated. For example, compare the two images below; you’d have a better chance of picking up the chick than you would of getting the gangrene.