By John W. Colledge III

Despite widespread opposition, Australia plans to have plain-packaged cigarettes on shop shelves by July 2012. The UK is also planning to follow suite, while the European Union has recently proposed a ban on branded cigarettes which, if accepted would force tobacco companies throughout the EU to sell their products in generic packaging. The response from both the tobacco and the authentication industry is that such moves would provide a gift to the counterfeiters. But in this article John Colledge III, a consultant specialising in customs, anti-illicit trade and anti-money laundering, takes a different view, arguing that plain packaging could actually assist enforcers in detecting counterfeits, as well as providing a golden opportunity for authentication and tax stamp providers.

In 2010, the international news media widely reported claims from the tobacco industry that the introduction of plain or generic packaging of tobacco products would increase illicit trade, especially counterfeiting. The information found in the public domain did not demonstrate how, or why, plain or generic packaging would increase illicit trade in tobacco products. There are many law enforcement techniques that are available for the investigation and interdiction of contraband tobacco products. 

Common Understanding

Before discussing those investigative techniques, it is necessary to begin this discussion with a common understanding and definition of plain or generic packaging. It is also important to understand that such a system has not yet been implemented in any jurisdiction. Additionally, plain or generic packaging is not devoid of all markings, therefore the use of the term 'plain' is somewhat misleading.

One must carefully read the Australian Government proposal for what is restricted or prohibited.  Restrictions were clearly applied to brand and product names. Furthermore, the Australian government's Department of Health and Aging said the packaging would '...restrict or prohibit the use of tobacco industry logos, colours, brand imagery or promotional text on tobacco product packaging other than brand names and product names in a standard colour, font style and position[1]"

A review of the UK Department of Health website failed to locate a similar statement or proposal from the UK government. Many media sources reported, or demonstrated through photographs, examples of possible generic packaging that Australian and UK would continue to include verbal and graphic health warnings, and one-dimensional industry barcodes. 

Indicia and Tax Stamps to Continue

Although not specially addressed in the Australian proposal or the media reporting, it is highly likely the packaging would continue to include indicia of tax paid (and, for countries that already use them, tax stamps). The document security and authentication industries could make valuable contributions to combating all forms of illicit tobacco trade by enhancing existing tax stamps and developing new systems or products that include tracking and trace regimes that are interfaced with various existing government tax, trade mark, licensing, manufacturing, importing and exporting data bases.

Even without assistance from the document security and authentication industries, the law enforcement, customs and revenue authorities have many traditional tools and techniques available to them for combating the illicit tobacco trade. Unfortunately many of these tools or techniques are not commonly employed in trade fraud investigations. 

Enhancing Enforcement

In the case of generic packaging, the absence of color or logos may actually enhance enforcement in certain circumstances. For instance, it is unlikely that generic packaging would be universally implemented and, as a result, would facilitate detection of  contraband in generically-marked products into a jurisdiction utilizing traditional packaging and vice versa. Customs and revenue inspectors could more quickly detect contraband in those scenarios based upon simple observations. The effectiveness of  quick observations, however, are negated by the frequent need to thoroughly examine packaging for country of origin, health warnings, tax stamps, authenticity of the products and any affixed tax stamps.

Criminal forensics are often not discussed in the context of the illicit tobacco trade and other forms of trade fraud, but they are valuable in criminal investigations or government-led civil litigation. As with traditional packaging, the paper, foil, inks, printing techniques and tool and glue marks used, or found present on or in generic packaging, could be forensically examined and compared by law enforcement criminalists to establish the source of contraband and product authenticity. Specifically, these features would yield both general and unique class characteristics that could be used to link contraband to specific manufacturing equipment and other seizures. 

Once linked to specific manufacturing equipment or other seizures, investigators could build the complex international conspiracy cases necessary to address the organized crime groups that were attracted to the illicit tobacco trade more than 50 years ago. Scientific investigation would support judicial orders for special investigative techniques, corroborate testimony of cooperating witnesses, and authenticate documentary evidence seized from violators or culled from government records.

The opinions contained herein are entirely mine and  based upon experience in investigating a variety of crimes against persons and property as a military police investigator, police officer, detective, deputy sheriff, and as a customs criminal investigator investigating international tobacco smuggling, managing the US Customs Service International Tobacco Smuggling Program, representing the US as a delegate to the World Customs Organization and the former G-8 Lyon Sub-Group on Transnational Organized Crime, consulting on the Framework Convention for Tobacco Control and on-going research. 

[1] Australian Government, Department of Health and Aging, Internet, http://www.yourhealth.gov.au/internet/yourhealth/publishing.nsf/Content/factsheet-prevention-02, accessed:  5 February 2011.