Regulating Tobacco, Alcohol and Food Products: The Impact on, and Role of, Intellectual Property Rights

Enrico Bonadio 

City University London - The City Law School; University of Abertay Dundee
August 2013

Chapter in: Tania Voon, Andrew Mitchell, and Jonathan Liberman, 'Regulating Tobacco, Alcohol and Unhealthy Foods: The Legal Issues', Routledge (Forthcoming) 
Abstract:      
The paper first aims to highlight the impact of a growing number of regulatory measures aimed at reducing the consumption of products that are harmful to people, such as tobacco, alcohol and unhealthy foods, on intellectual property regimes. Such measures include rules related to product presentation, measures limiting advertising and product availability as well as rules related to manufacturing and fiscal measures. The purpose of these measures is to reduce the consumption of products considered harmful and thus protect consumers’ health.

Yet these measures also have the effect of reducing the ability of tobacco, alcohol and food manufacturers to produce, present, advertise and market their products as they wish, and to make them appealing to consumers. More importantly, all these measures impair the ability of manufacturers to fully exploit their IP assets, whether they are (a) registered or unregistered trademarks affixed on products and packaging; (b) copyrighted works displayed on products or packaging; (c) distinctive trade dress and get-up for products; (d) registered or unregistered designs incorporated in products or packaging; or (e) patented inventions related to ingredients and constituents or related to packaging.

The second part of the paper looks at whether the inability of tobacco, alcohol and food manufacturers to fully use their IP assets due to the introduction of regulatory measures intended to curb their consumption also entails a violation of the rights offered by IP laws.

Finally, the last part of the paper tries to verify if and to what extent IP laws, and in particular patent procedures, may be amended with a view to incentivizing companies to produce and market healthier products in the field of foodstuff and beverages.

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2318029