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Tobacco Plain Packaging Bill 2011

Part 2 Requirements for retail packaging and appearance of tobacco products

Division 1 Requirements for retail packaging of tobacco products

18   Physical features of retail packaging

Retail packaging of all tobacco products

             (1)  The retail packaging of tobacco products must comply with the following requirements:

                     (a)  the outer surfaces and inner surfaces of the packaging must not have any decorative ridges, embossing, bulges or other irregularities of shape or texture, or any other embellishments, other than as permitted by the regulations;

                     (b)  any glues or other adhesives used in manufacturing the packaging must be transparent and not coloured.

Cigarette packs and cigarette cartons

             (2)  A cigarette pack or cigarette carton must comply with the following requirements:

                     (a)  the pack or carton must be rigid and made of cardboard, and only cardboard (subject to paragraphs (1)(b) and (3)(d));

                     (b)  when the pack or carton is closed:

                              (i)  each outer surface of the pack or carton must be rectangular; and

                             (ii)  the surfaces of the pack or carton must meet at firm 90 degree angles;

                     (c)  all edges of the pack or carton must be rigid, straight and not rounded, bevelled or otherwise shaped or embellished in any way, other than as permitted by the regulations.

             (3)  A cigarette pack must comply with the following requirements:

                     (a)  the dimensions of the pack must comply with the requirements prescribed by the regulations;

                     (b)  the only opening to the pack must be a flip-top lid which must:

                              (i)  be hinged only at the back of the pack; and

                             (ii)  have straight edges;

                            and neither the lid, nor the edges of the lid, may be rounded, bevelled or otherwise shaped or embellished in any way;

                     (c)  the inside lip of the cigarette pack must have straight edges, and neither the lip, nor the edges of the lip, may be rounded, bevelled or otherwise shaped or embellished in any way;

                     (d)  if the pack contains lining—the lining of the pack must be made only of foil backed with paper, or any other material prescribed by the regulations.

19   Colour and finish of retail packaging

             (1)  This section applies to the following things:

                     (a)  all outer surfaces and inner surfaces of the retail packaging of tobacco products (within the meaning of paragraph (a) or (b) of the definition of retail packaging );

                     (b)  both sides of any lining of a cigarette pack.

Note:          For the requirements for wrappers, inserts and onserts, see sections 22 and 23.

             (2)  The things mentioned in subsection (1):

                     (a)  must have a matt finish; and

                     (b)  except as provided by subsection (3):

                              (i)  if regulations are in force prescribing a colour—must be that colour; and

                             (ii)  otherwise—must be drab dark brown.

             (3)  The following are not required to be the colour mentioned in paragraph (2)(b):

                     (a)  the health warnings;

                     (b)  the text of:

                              (i)  the brand, business or company name, or variant name (if any), for the tobacco products; and

                             (ii)  the relevant legislative requirements (other than the health warnings).

Note:          The regulations might require the brand, business, company or variant name, or a relevant legislative requirement, to be a particular colour.

20   Prohibition on trade marks and marks generally appearing on retail packaging

No trade marks

             (1)  No trade mark may appear anywhere on the retail packaging of tobacco products, other than as permitted by subsection (3).

Note:          This section does not apply to wrappers (see subsection (4)).

No marks

             (2)  No mark may appear anywhere on the retail packaging of tobacco products, other than as permitted by subsection (3).

Note:          For the definition of mark , see section 4.

Permitted trade marks and marks

             (3)  The following may appear on the retail packaging of tobacco products:

                     (a)  the brand, business or company name for the tobacco products, and any variant name for the tobacco products;

                     (b)  the relevant legislative requirements;

                     (c)  any other trade mark or mark permitted by the regulations.

Note:          For requirements for brand, business, company or variant names, and relevant legislative requirements, see section 21.

Section not to apply to wrappers

             (4)  This section does not apply to a plastic or other wrapper that covers:

                     (a)  the retail packaging of tobacco products; or

                     (b)  a tobacco product that is for retail sale.

Note:          For the requirements for wrappers, see section 22.

21   Requirements for brand, business, company or variant names, and relevant legislative requirements

Requirements for brand, business, company or variant name—general

             (1)  Any brand, business or company name, or any variant name, for tobacco products that appears on the retail packaging of those products must comply with any requirements prescribed by the regulations.

Note:          This section does not apply to wrappers (see subsection (5)).

Requirements for brand, business, company or variant name—cigarette packs and cigarette cartons

             (2)  Any brand, business or company name, or any variant name, for cigarettes that appears on a cigarette pack or cigarette carton:

                     (a)  must not obscure any relevant legislative requirement; and

                     (b)  must not appear more than once on any of the following outer surfaces of the pack or carton:

                              (i)  for a cigarette pack—the front, top and bottom outer surfaces of the pack;

                             (ii)  for a cigarette carton—the front outer surface of the carton, and the 2 smallest outer surfaces of the carton; and

                     (c)  may appear only on the surfaces mentioned in paragraph (b); and

                     (d)  must appear across one line only; and

                     (e)  must comply with the requirements in the table in subsection (3).

             (3)  The following table has effect:

 

Requirements for brand, business, company or variant names

Item

If this name ...

appears on this surface ...

the name ...

1

a brand, business or company name

the front outer surface of a cigarette pack

must appear:

(a) horizontally below, and in the same orientation as, the health warning; and

(b) in the centre of the space remaining on the front outer surface beneath the health warning.

2

a brand, business or company name

the front outer surface of a cigarette carton

must appear:

(a) in the same orientation as the health warning; and

(b) in the centre of the space on the front outer surface that is not occupied by the health warning.

3

a brand, business or company name

any outer surface of a cigarette pack or cigarette carton (other than a front outer surface)

must appear:

(a) horizontally; and

(b) in the centre of the outer surface of the pack or carton.

4

variant name

any outer surface of a cigarette pack or cigarette carton

must appear:

(a) horizontally and immediately below the brand, business or company name; and

(b) in the same orientation as the brand, business or company name.

 

Requirements for relevant legislative requirements (other than health warnings)

             (4)  Any relevant legislative requirement (other than the health warnings) must comply with any requirements prescribed by the regulations.

Section not to apply to wrappers

             (5)  This section does not apply to a plastic or other wrapper that covers:

                     (a)  the retail packaging of tobacco products; or

                     (b)  a tobacco product that is for retail sale.

Note:          For the requirements for wrappers, see section 22.

22   Requirements for wrappers

             (1)  This section sets out the requirements that a plastic or other wrapper must comply with if the wrapper covers:

                     (a)  the retail packaging of tobacco products (within the meaning of paragraph (a) or (b) of the definition of retail packaging ); or

                     (b)  a tobacco product that is for retail sale.

             (2)  For the purposes of subsection (1), the wrapper must comply with the following requirements:

                     (a)  the wrapper must be transparent and not coloured, marked, textured or embellished in any way, other than as permitted by the regulations;

                     (b)  no trade mark may appear anywhere on the wrapper, other than as permitted by the regulations;

                     (c)  no mark may appear anywhere on the wrapper, other than as permitted by the regulations.

23   Retail packaging not to have inserts or onserts

                   The retail packaging of tobacco products (within the meaning of any of paragraphs (a) to (d) of the definition of retail packaging ) must not have any inserts or onserts, other than as permitted by the regulations.

24   Retail packaging not to produce noise or scent

                   No part of the retail packaging of tobacco products may make a noise, or contain or produce a scent, that could be taken to constitute tobacco advertising and promotion.

Note:          For the definition of tobacco advertising and promotion , see section 4.

25   Retail packaging must not change after retail sale

                   The retail packaging of tobacco products must not include any features designed to change the packaging after retail sale, including (without limitation) the following:

                     (a)  heat activated inks;

                     (b)  inks or embellishments designed to appear gradually over time;

                     (c)  inks that appear fluorescent in certain light;

                     (d)  panels designed to be scratched or rubbed to reveal an image or text;

                     (e)  removable tabs;

                      (f)  fold-out panels.



 

Division 2 Requirements for appearance of tobacco products

26   Requirements for appearance of tobacco products

             (1)  No trade mark may appear anywhere on a tobacco product, other than as permitted by the regulations.

             (2)  No mark may appear anywhere on a tobacco product, other than as permitted by the regulations.

Note:          For the definition of mark , see section 4.



 

Division 3 Miscellaneous

27   Regulations may prescribe additional requirements

             (1)  To further the objects of this Act, the regulations may prescribe additional requirements in relation to:

                     (a)  the retail packaging of tobacco products; and

                     (b)  the appearance of tobacco products.

Note 1:       The objects of this Act are set out in section 3.

Note 2:       Offences and civil penalties apply to the supply, purchase and manufacture etc. of tobacco products that do not comply with the requirements (see Chapter 3).

             (2)  Divisions 1 and 2 of this Part do not limit subsection (1).

28   Effect on the Trade Marks Act 1995 of non-use of trade mark as a result of this Act

             (1)  For the purposes of the Trade Marks Act 1995 , and regulations made under that Act, an applicant for the registration of a trade mark in respect of tobacco products is taken to intend to:

                     (a)  use the trade mark in Australia in relation to those products; or

                     (b)  authorise another person to use the trade mark in Australia in relation to those products; or

                     (c)  assign the trade mark to a body corporate that is about to be constituted with a view to the body corporate using the trade mark in Australia in relation to those products;

if the applicant would intend to do so but for the operation of this Act.

             (2)  To avoid doubt, for the purposes of paragraph 42(b) of the Trade Marks Act 1995 , this Act does not have the effect that the use of a trade mark in relation to tobacco products would be contrary to law.

             (3)  To avoid doubt, for the purposes of sections 38 and 84A of the Trade Marks Act 1995 , and regulations 17A.27 and 17A.42A of the Trade Marks Regulations 1995 :

                     (a)  the operation of this Act; or

                     (b)  the circumstance that a person is prevented, by or under this Act, from using a trade mark on or in relation to the retail packaging of tobacco products, or on tobacco products;

are not circumstances that make it reasonable or appropriate:

                     (c)  not to register the trade mark; or

                     (d)  to revoke the acceptance of an application for registration of the trade mark; or

                     (e)  to register the trade mark subject to conditions or limitations; or

                      (f)  to revoke the registration of the trade mark.

             (4)  For the purposes of paragraph 100(1)(c) of the Trade Marks Act 1995 , an opponent is taken to have rebutted an allegation if the opponent establishes that the registered owner would have used the trade mark in Australia on or in relation to the retail packaging of tobacco products, or on tobacco products, but for the operation of this Act.

Trade Marks regulations applying provisions of Trade Marks Act

             (5)  Subsections (1) to (4) also apply in relation to regulations made under the Trade Marks Act 1995 that:

                     (a)  apply provisions of the Trade Marks Act 1995 that are affected by this section, including where the regulations apply those provisions in modified form; and

                     (b)  provide in similar terms to provisions of the Trade Marks Act 1995 that are affected by this section.

29   Effect on the Designs Act 2003 of failure to make products as a result of this Act

                   A failure to make a product that embodies a registered design merely as a result of complying with the requirements of this Act does not provide the basis for making an order:

                     (a)  under section 90 of the Designs Act 2003 , requiring the grant of a licence in relation to the design; nor

                     (b)  under section 92 of that Act, revoking the registration of the design.