Health will recover tobacco neutral packaging in the parliamentary procedure

Neutral packaging involves removing all visual signs from the boxes, replacing them with a uniform colour and the brand name in a reduced standard font. The aim, according to Health and the National Committee for the Prevention of Smoking, is to reduce the attractiveness of the products, especially among young people and adolescents.

However, the tobacco industry and associations such as Andema consider this measure to be "disproportionate" and "tantamount to eliminating the brand", which would have an impact on product identification and differentiation. La Taula del Tabac warns of an estimated economic damage of 460 million euros.

The legal view: brands versus public health

From a legal point of view, the measure is controversial. Carolina Montero, partner of Intellectual and Industrial Property at ECIJA, stresses that this type of packaging "clashes head-on with the essential function of the trademark: distinctiveness". Even if the brand name is maintained, the identifying elements that for decades have built the visual recognition of companies such as Marlboro or Lucky Strike disappear, which "entails a risk of confusion for the consumer and erodes the principle of clarity and information".

On the other hand, other jurists argue that the measure is justified by the prevalence of the higher legal good: public health. In their opinion, neutral packaging would not be a delict, as it is a legal obligation and not a market behaviour.

International experience and the CNMC

Australia was the first country to implement the measure in 2012, which led to a court battle that went all the way to the World Trade Organisation, which endorsed the regulation in 2020. In Europe, the United Kingdom, France, Belgium and Norway also apply it, despite opposition from tobacco companies.

In Spain, the CNMC has questioned the proposal due to a lack of sufficient scientific evidence on its effectiveness and has recommended exploring alternative measures, such as reinforcing the inspection of sales to minors or increasing the transparency of information on risks.

Proper steps

Although the regulation will have to pass through the parliamentary process, the Ministry's announcement anticipates a major political, health and business debate. The legal and business sector is already preparing for possible litigation if neutral packaging is finally approved, which could set a precedent with an impact beyond tobacco, in sectors such as alcoholic beverages or ultra-processed foods.

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