THE Federal Government has rejected tobacco company claims that its plain packaging laws amount to an acquisition of their brands and logos, saying the legislation is an extension of regulations that have applied for the last 40 years.
In the High Court today, Commonwealth Solicitor-General Stephen Gageler SC said the laws which passed late last year were about public health and not, as the tobacco companies argued, about acquiring their intellectual property.
"On that argument, the tobacco companies for the last 40 years or so have been frogs slowly boiling, with the gradual taking of their property," he told the court in Canberra.
"This is nothing more than the prospective regulation of conduct in the course of trade."
Four big tobacco companies are challenging the plain packaging laws, which will require all cigarettes and tobacco products to be sold in drab olive-brown packs from December.
They are arguing the laws effectively acquire their property, in the form of trademarks and logos, and are unconstitutional unless just compensation is paid.
The case, which has drawn international attention, is being heard by the full bench of the High Court before a packed public gallery and an army of some 40 lawyers.
The lawyers represent tobacco companies British American Tobacco (BAT), Japan Tobacco International, Philp Morris and Imperial Tobacco Australia, as well as the commonwealth, state and territory governments and groups like the Cancer Council of Australia.
The tobacco companies concluded their arguments this morning, handing the floor to Mr Gageler who argued that what was proposed was regulation of a trade, in the same manner that other products harmful to human health, such as the rat poison Ratsak, required warnings about safe handling.
He said none of the increased restrictions on tobacco trademarks had resulted in a diminution of the property of the tobacco companies.
The tobacco plain packaging law were in essence a product standard, he said.
"This legislation is no different in principle from any other specification, or product standard, or information standards for products or services that are to become subject to trade in future," he said.
Mr Gageler said the standard was directed at informing, redressing or reducing the harm to public health caused by tobacco products with warnings comparable to those on any other product injurious to health.
"The suggestion that tobacco packets will become little billboards for government advertising is wrong," he said.
The hearing continues tomorrow vwith the judges expected to reserve their decision until later in the year.
Tobacco companies are throwing everything at the legal challenge because they are worried other countries could follow Australia's lead if the Government wins.
BAT says the battle will be a test case for the validity of plain-packaging legislation.