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Hospitality Operators: Beware the Imminent Tobacco Packaging Laws!

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Hospitality Operators: Beware the Imminent Tobacco Packaging Laws!

Hospitality Operators: Beware the Imminent Tobacco Packaging Laws!
April 03
08:40 2017

Susan Snedden 2Smoking may have long been banned from pubs and restaurants but many hospitality operations still sell tobacco products. However, from May, the UK-wide plain packaging law is to be extended to cover all businesses selling cigarettes, and operators could face fines or prison if they choose to ignore the new regulations.

Susan Snedden says the food and drink industries could also be drawn into the legal fray over plain packaging…

What are the current tobacco packaging laws in the UK and how are they changing?

The Standardised Packaging of Tobacco Products Regulations 2015 came into effect last year, after being unsuccessfully challenged in court by a number of tobacco companies. There was a sell-through period for old stock, but this will end from 21st May 2017 and it will be illegal to use any branding on tobacco products other than the brand name in a standard font and size.

How will Scottish catering and hospitality sector be affected?

Crucially, the law will apply not just to manufacturers but to those who sell cigarettes and it will be a criminal offence to supply tobacco products in non-standardised packaging.

The tobacco industry has also predicted that the advent of plain packaging will lead to increasing numbers of counterfeit goods coming to market, so sellers may also be at higher risk of inadvertently supplying counterfeits. The sale of counterfeit tobacco products is also a criminal offence with penalties including a fine, forfeiture of the counterfeit goods, and even imprisonment in the most serious cases.

What should Scottish hospitality businesses do to ensure they stay within the law?

It is crucial that those who sell tobacco products familiarise themselves with the new regulations and make extra efforts to ensure that products are obtained from legitimate sources on whom they have carried out due diligence. Only limited defences are available, so awareness is key.

Is plain packaging likely to be rolled out to other products?

Consumer groups have suggested that plain packaging laws could ultimately pave the way for plain packaging for alcohol and foods high in sugar and fat. Such moves would likely be hotly contested but all industries facing scrutiny from a public health perspective will be watching nervously to see how this issue evolves.

Meanwhile, tobacco companies argue that plain packaging deprives brand owners of valuable intellectual property rights upon which companies have spent both considerable time and millions of pounds developing. If they are prevented from using their branding, the companies argue, this could deprive them of valuable property rights and leaves their trade marks vulnerable to revocation for non-use.

The first plain packaging laws, introduced in Australia in 2011, are being challenged at the World Trade Organisation on these grounds and a decision is also expected in May. But even when the ruling is delivered, the issue will be far from settled as all parties will be entitled to a round of appeals.

Susan Snedden is a director in the IP & Technology team of Maclay Murray & Spens LLP and a member of the firm’s Food & Drink team.

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Catering Scotland

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