Plain packaging of tobacco: health protection or infringement of brand rights?

Generic or plain packaging of tobacco products, which involves removing all graphic and visual signs from the packs and replacing them with a uniform color with reduced standard typography, has become a subject of legal, economic, and health debate in Spain.

The measure, promoted by the World Health Organization (WHO) and included as an option in Directive 2014/40/EU, is already in effect in countries like France, Belgium, and the Netherlands. In Spain, however, it has been excluded from the draft reform of the Anti-Tobacco Law, although the Ministry of Health has expressed its intention to incorporate it in the future.

Intellectual property and brand rights

Brand defense associations, such as ANDEMA, argue that this measure would constitute an infringement of industrial property rights, recognized in the Trademark Law. "Brands are prevented from playing their two basic functions: identifying the product and differentiating it from the competition," says Gerard Guiu, general director of ANDEMA.

In the same vein, Cristina Casas Feu, a lawyer specializing in industrial property, warns that depriving companies of their registered names, colors, or distinctive signs limits their legitimate rights as trademark holders.

Risk of counterfeiting and smuggling

Another argument against plain packaging is the risk of facilitating counterfeiting and smuggling. The homogenization of packages would make it easier to copy products, increasing illegal trade and, with it, the health risks associated with counterfeit products. In countries like the United Kingdom and France, pioneers in this measure, increases in illegal consumption of between 20% and 30% have been reported.

Free competition versus health protection

From a legal perspective, ECIJA partner Patricia Liñán Hernández, an expert in Competition and EU Law, highlights that generic packaging limits freedom of enterprise and free competition while potentially causing confusion among consumers. The issue, she explains, revolves around a conflict between two constitutionally protected goods: freedom of enterprise and free competition on one hand, and health protection on the other.

The key lies in applying the technique of weighting, assessing whether the measure is truly necessary and proportional to achieve its health objective or if there are less restrictive alternatives.

An open debate

While tobacco companies and brand associations condemn the economic and legal consequences of the measure, health organizations insist that plain packaging is a necessary tool to reduce the appeal of tobacco.

For the moment, the tobacco industry maintains its differentiated packaging in Spain, but the uncertainty remains: will plain packaging ultimately be the chosen path to strengthen the fight against smoking, even at the expense of restricting brand rights and competition?

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