The tobacco industry’s archives suggest that the global campaign for the plain packaging of tobacco products originated in 1986, when the Canadian Medical Association passed a resolution calling for cigarettes to be sold in packages bearing only a brand name and the health message “this product is injurious to your health.” In most jurisdictions, regulations requiring the apposition of health warnings to cigarette packs have been in force for decades. Proposals for plain packaging aim to go further, and eliminate the visual and tactile features that turn cigarette packs into “badge” wrappers, and which express the subliminal messages that diminish or subvert the effect of even the most uncompromising health messages. Given that effective plain packaging regulations would severely restrict the tobacco companies’ ability to exploit their trademarks or rights in trade dress, the question of the domestic or international constitutionality of such restrictions has become an essential ground for the industry’s contestation of plain packaging measures. This Article argues that the contest over plain packaging is the latest, and perhaps the last, phase in a history of brand “positioning,” in which cigarette companies used their brands to exploit the dynamics of the health debate to “refresh” the image of their brands and products.
Australia passed the Tobacco Plain Packaging Act of 2011, which came into force on December 1, 2012, and became the first nation in the world to impose a mandatory scheme of plain packaging. In the process, Australia became the first jurisdiction to adjudicate on the constitutionality of plain packaging.
The Australian statute addresses the well-documented power of brands to induce young people to take up smoking. The tobacco companies have never been especially discriminating in their pursuit of prospective clients — as Philip Morris’s in-house advertisers once put it, “they got lips, we want ‘em” — but younger smokers have always been the prime target. To capitalize on the strength of brand loyalty in the cigarette market, rival tobacco companies seek to capture young “starters” just as they are embarking on their careers. The aesthetic of the cigarette package plays an essential role in these recruitment strategies. A report commissioned by Liggett & Myers in 1963 observed that “the primary job of the package is to create a desire to purchase and try. To do this, it must look new and different enough to attract the attention of the consumer.” Over the course of the twentieth century, the effect of youth advertising campaigns was progressively to reduce the average age at which young people began smoking. Cynically, as evidence of increased mortality rates among smokers became irrefutable, the industry characterized these initiates as “replacement smokers.” With this history in mind, the Tobacco Plain Packaging Act sought “to reduce the attractiveness and appeal of tobacco products to consumers, particularly young people” and to “reduce the ability of the tobacco product and its packaging to mislead consumers about the harms of smoking.”
The Act, which runs to 111 pages, augmented by regulations, seeks to disqualify all the media that resourceful advertising agencies might use to “dress” a cigarette pack — shape, size, texture, color, scent, and so on. The Act stipulates that tobacco packaging may have no “decorative ridges, embossing, bulges or other irregularities of shape or texture.” Cigarette packs or cartons must be rectangular and of prescribed sizes, with surfaces that meet “at firm 90 degree angles,” and the adhesives used on those surfaces must be transparent. The lid of a pack can be sealed by means of a perforated strip, but there may be no other re-sealable opening, and the inner lip must have straight edges, with no embellishment. The lining of the pack should be made exclusively of foil, which may be embossed only with the dots or squares that are necessarily produced by the manufacturing process. The color of the outer surfaces of all primary and secondary packaging must be Pantone 448C: “a drab dark brown [color] found in market research to be optimal in terms of decreasing the appeal and attractiveness of tobacco packaging, decreasing the potential of the pack to mislead consumers about the harms of tobacco use, and increasing the impact of graphic health warning.” The inner white surfaces, lined with silver foil backed with white, and the packaging may not “make a noise, or contain or produce a scent, that could be taken to constitute tobacco advertising or promotion,” nor may it contain any features that are designed to change after sale. The only proprietary mark allowed on the surfaces of these standardized packs is the name of the brand or company, and a variant, printed in Lucida Sans eight point font. The cigarettes themselves must be white, with an imitation cork wrapping for the filter and a white filter tip, and may be marked only with an alphanumeric code encrypting manufacturing data. These measures might seem unnecessarily exhaustive, until one recalls the canniness with which the industry has responded to attempts to regulate the packaging of cigarettes.
Plain packaging legislation raises a number of engaging theoretical and practical questions: about the legal qualities of the intellectual property rights that articulate branding strategies, about the relationship between the regimes of international trade law and world health policy, and about the history of regulatory initiatives to address the public health implications of smoking. Here, I am interested in questions about the communicative agency of the mass media: what does the example of Australia’s plain packaging law tell us about the role played by the surfaces of material wrappers and packages in branding practices?; how do brands articulate with the other strands of the mass media?He concludes that
Although nothing in the Tobacco Plain Packaging Act obstructs the bare identification of the source of a product, the only real scope left for developing brand identities is that which is afforded by the use of variant names. In September 2012, before the statute came into force, British American Tobacco launched its proposed plain cigarette packs, which bore thirty-eight different variants, including “rich,” “smooth,” “fine,” “ultimate,” “original rum and wine,” and, for menthol cigarettes, “release chilled,” “sea green,” and “cool frost.” These descriptors evoke the symbolism that the industry developed through the now-proscribed media of color, shape, texture, and brand, and there is evidence that these condensed formulae shape the smoker’s perception of the product. The tobacco corporations may now be unable to position these vestigial brand signifiers through advertising, but there are suggestions that brand identities are being kept alive in social media. Assuming, however, that these opportunities are of only marginal significance, and assuming that the Australian statute survives referral to a WTO panel, it seems likely that the statute will achieve its objective of extinguishing the power of brands to capture new smokers and bind established smokers to their preferred brand. This prompts a somewhat speculative concluding observation: what if the smoker’s addiction to nicotine were an apt metaphor for the nature of our attachment to brands?
Robert Proctor observes that the smoker’s craving for cigarettes is motivated both by the charisma of brands and by the psycho-chemical agency of nicotine; in the tobacco business, “[m]arketing joins with psychopharmacology to transform a rare or ritual indulgence into brain-rewiring mega-morbidity.” Nicotine is obviously the more persistent agent of addiction; according to industry insiders, the charisma of the brand holds the smoker until the effects of nicotine kick in. And, once hooked to the brand, smokers will “taste” in the tobacco the lifestyle qualities that are projected by the aesthetic of the pack. Even connoisseur smokers cannot savor a cigarette without ascribing to the tobacco the psychic effects of cues such as the color of a pack. Louis Cheskin, one of the great marketing gurus of the twentieth century, called this the effect of “sensation transference,” in which the auratic effects of the branded package are translated into innate qualities of the product.
It might be a stretch to characterize our attachment to brands as an effect of cultural “addiction,” but the hypothesis is that the notion of addiction gets at an essential feature of the agency of brands. Addiction is not a straightforward concept. The contemporary notion can be traced back to the moral and religious censure of alcohol consumption in the nineteenth century, and the old moralistic characterization of drunkenness as a “disease of the will” still echoes through to the expert categorization of addictions. Cigarettes illustrate the point rather well. The characterization of brands as culturally addictive is based not on the premises of neuromarketing, but on the implications of Luhmann’s theory of mass media information. What we are addicted to is knowledge: “[t]he desire for information becomes as socially essential as the intake of new food is biologically essential.” More precisely, we are addicted to the speed of knowledge in the age of the mass media. We are compelled to be up to date and in the know, in current affairs, sports, literature, entertainment, and fashion, and the aesthetic of brands presupposes, captures, and reinforces this compulsion.