Expert says standardised cigarette packaging policy needs cross-sectoral review

Constitutional law expert from Sebelas Maret University (UNS) Airlangga Surya Nagara has assessed that the standardised cigarette packaging policy needs to be reviewed by carrying out a regulatory impact analysis and involving cross-sectoral stakeholders. “The aim is so that the policy formed is proportional, non-discriminatory, and no more restrictive than necessary to achieve health objectives,” Airlangga said in a statement received in Jakarta on Friday. Airlangga explained that juridically, the plan to standardise packaging colours raises issues because there are two conflicting interests requiring state protection. From the perspective of business actors, Airlangga said the plan to regulate uniform packaging colours has the potential to violate exclusive rights over trademarks, which are intellectual property rights guaranteed by the constitution. “This restriction is not merely a technical regulation, but constitutes an economic restriction on business actors operating in that sector,” he stated. Furthermore, he said, there are two interests that equally require the state’s attention, namely the protection of intellectual property rights and efforts to reduce the prevalence of smokers in Indonesia. Airlangga cautioned that if the standardisation of packaging colours is carried out through the total elimination of designs, brands, and logos, it would violate the principles of Intellectual Property Rights (IPR) aimed at protecting brand identity. In addition, the policy would exceed authority because it touches the constitutional realm relating to the restriction of economic rights. According to him, this should be regulated by Law, not technical regulations. He further noted that Article 435 of Government Regulation Number 28 of 2024 on the Implementing Regulation of Law Number 17 of 2023 on Health only states that the Ministry of Health has the authority to regulate packaging standardisation consisting of design and text, not to then standardise packaging colours as currently pushed by the Ministry of Health. Previously, the Ministry of Industry (Kemenperin) affirmed its rejection of the standardised cigarette packaging regulation contained in the draft Minister of Health Regulation as a derivative rule of Government Regulation Number 28 of 2024. Director of Beverage, Tobacco Products and Refreshing Ingredients Industry at Kemenperin Merrijantij Punguan Pintaria requested that the provisions regarding packaging standardisation be removed from the draft regulation. She conveyed that this stance is in line with the aspirations of business actors who consider the packaging standardisation regulation inappropriate for inclusion in the Minister of Health Regulation. According to her, in the harmonisation process which is still ongoing, the Ministry of Health as the initiator maintains the view that packaging standardisation is a mandate from Government Regulation Number 28 of 2024. However, Kemenperin is of the view that what should be regulated is the design and placement of health warnings on cigarette packaging, not overall packaging standardisation. The Ministry of Health is currently drafting a Minister of Health Regulation on the Inclusion of Health Warnings and Information on Tobacco Products and Electronic Cigarettes to reduce product appeal, particularly for children and adolescents. Acting Director General of Disease Control at the Ministry of Health Andi Saguni said cigarette and vape packaging has not only functioned as a product container, but also as a promotional tool capable of attracting new potential smokers, especially among young age groups.