Standardised Tobacco Packaging Plan Creates Legal Uncertainty

The Ministry of Health is pushing for the implementation of a regulation to standardise the packaging of tobacco products, as part of the enforcement of Government Regulation No. 28 of 2024. If this provision comes into effect, the packaging of tobacco products such as cigarettes and e-cigarettes must appear uniform, without brand colours or promotional designs.

This packaging standardisation is an adoption of the plain packaging rules outlined in the Framework Convention on Tobacco Control (FCTC), an international treaty from the World Health Organization that Indonesia has not ratified. However, if this standardisation is enforced in Indonesia, it could lead to legal uncertainty.

Professor of Business Law at Muhammadiyah University of Yogyakarta, Mukti Fajar Nur Dewata, assessed that a product must have a brand and industrial design. He argued that standardising cigarette packaging could actually create legal uncertainty because it contradicts the trademark and industrial design regime. “Based on trademark and industrial design law, a brand and its packaging must have distinguishing features, or there must be no substantial similarity. So, if a regulation attempts to govern a product with uniform, identical colours and packaging, it will contradict the trademark and industrial design regime,” Mukti stated.

In a separate discussion, Constitutional Law expert from Sebelas Maret University (UNS), Airlangga Surya Nagara, explained that the plan to standardise packaging colours is legally problematic. He noted two conflicting interests requiring state protection. Firstly, Law No. 20/2016 on Trademarks and Geographical Indications guarantees the exclusive rights of registered brand owners to distinguish their products in the market. From a business perspective, Airlangga continued, this plan potentially violates the exclusive rights to a brand, which is an intellectual property right guaranteed by the constitution. “This restriction is not merely a technical regulation but an economic restriction on business actors operating in this sector,” he said.

Secondly, there are two interests that equally require the state’s attention: the protection of intellectual property rights and the effort to reduce the prevalence of smoking in Indonesia. To balance these conflicting interests, Airlangga believes the policy draft needs to be reviewed by conducting a regulatory impact analysis and involving cross-sectoral stakeholders. “The goal is to ensure the resulting policy is proportional, non-discriminatory, and no more restrictive than necessary to achieve the health objectives,” he added.

Airlangga cautioned that if the standardisation of packaging colours is carried out by completely eliminating designs, brands, and logos, it would violate the principles of Intellectual Property Rights (IPR) intended to protect brand identity. Furthermore, this policy would exceed its authority by encroaching on constitutional matters related to the restriction of economic rights. He argued that such matters should be regulated by law, not a technical regulation. Moreover, Article 437 of Government Regulation No. 28/2024 on the Implementation of Law No. 17/2023 concerning Health only stipulates that the Ministry of Health has the authority to regulate packaging standards, which consist of design and text, not to standardise the shape and colour of packaging as currently being pushed by the Ministry.

Previously, during a CNBC Indonesia Coffee Morning event, Commission XI DPR RI member Misbakhun also assessed that the government’s plan to standardise cigarette packaging into plain packaging must be approached cautiously, as it could increase the number of illegal cigarettes. He cited the example of Australia, where state revenue dropped drastically because the contribution of legal cigarette producers could not compete with the dominance of illegal cigarettes, resulting in annual state losses of up to AU$1.6 billion.