Page:JT International SA v Commonwealth of Australia.pdf/12

French CJ Substantive requirements for the physical features, colours and finish of retail packaging are imposed by ss 18 and 19 of the TPP Act and by the Tobacco Plain Packaging Regulations 2011 (Cth) ("the TPP Regulations") made under that Act. Embellishments on cigarette packs and cartons are proscribed. Packs and cartons are to be rectangular, have only a matt finish , and bear on their surfaces the colour prescribed by the TPP Regulations. Absent regulation, the colour of the package must be a drab dark brown. The use of trade marks on retail packaging of tobacco products is prohibited other than as permitted by s 20(3) which provides:

"The following may appear on the retail packaging of tobacco products:

1. the brand, business or company name for the tobacco products, and any variant name for the tobacco products;

2. the relevant legislative requirements;

3. any other trade mark or mark permitted by the regulations."

Section 26 imposes a similar conditional prohibition on the use of trade marks on tobacco products. The term "relevant legislative requirement" in s 20(3)(b) includes a health warning required by the Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004 (Cth) ("the TPCPI Regulations") or a safety or information standard made or declared under the Competition and Consumer Act 2010 (Cth) ("the CCA").

Brand, business, company and variant names for tobacco products which appear on retail packaging must comply with the TPP Regulations. They must