Philip Morris International (PMI) and British American Tobacco (BAT) both argue the measures deprive them of property in the form of trademarks, and are seeking compensation that could extend to billions of pounds if they succeed.
In legal objections filed to the High Court, they also claim the measures violate European intellectual property laws. The Department of Health said it would not let policy “be held to ransom by the tobacco industry”.
The legal challenges had been anticipated, following the introduction of standardised packaging legislation in March this year.
The measures, which are planned for a 2016 introduction, and full roll-out by 2017, have been opposed by Big Tobacco from day one. Similar legislation in Australia, where the introduction of plain packs has coincided with falls in smoking, has already been subject to an unsuccessful lawsuit.
Lawyers for the Government are understood to be confident that all legal aspects of the new measures have been taken into account. But even if unsuccessful, tobacco companies may be hoping legal action will delay implementation or discourage other countries from taking similar action.
“We respect the government’s authority to regulate in the public interest, but wiping out trademarks simply goes too far,” said Marc Firestone, PMI’s senior vice president and general counsel. “Countries around the world have shown that effective tobacco control can co-exist with respect for consumer freedoms and private property.”
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A spokesperson for BAT maintained that the company had “no other choice” to launch legal action adding: “Any business that has property taken away from it by the state would inevitably want to challenge and seek compensation.”
Other tobacco giants, including Japanese Tobacco International and Imperial Tobacco, are also understood to be considering lawsuits.
A Department of Health spokesperson said: “We will not allow public health policy to be held to ransom by the tobacco industry.
“Smoking is the biggest preventable cause of death in England – killing 80,000 people every year. We would not have gone ahead with standardised packaging unless we had considered it to be defensible in the courts.”
Health charity Action on Smoking and Health (ASH), said it had commissioned legal advice that indicates the legislation is compatible with European law. The group’s chief executive Deborah Arnott said: “The tobacco industry knows it has little or no chance of winning but by threatening legal action it is trying to stop the infection spreading to other countries.
“Standardised plain packaging threatens the profitability of the industry and they are desperate to prevent other countries from following the example set by Australia, the UK and Ireland.”
MPs voted to back plain packaging by 367 to 113 in March. The vote came one year after the publication of an independent review of evidence by Sir Cyril Chantler, which concluded it was “highly likely that standardised packaging would serve to reduce the rate of children taking up smoking and implausible that it would increase the consumption of tobacco.”
In Australia, where the measure was introduced in 2012, smoking rates fell by more than 12 per cent between December 2013 and 2014.
The power of the tobacco industry to market their products has been slowly eroded, to varying extents, by legislation in countries around the world. In the UK, advertising was phased out between 2003 and 2005, and in 2012, tobacco products were banned from display in supermarkets and large shops – a measure that was extended to small shops last month.
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