JAKARTA - The government's plan to standardize the color of packaging for tobacco products and electronic cigarettes through the Draft Regulation of the Minister of Health (RPMK) concerning the Inclusion of Health Warnings and Information on Tobacco Products and Electronic Cigarettes is considered problematic by a number of circles.
One of the fundamental things highlighted is the need for the Ministry of Health to involve all cross-sector stakeholders so that the resulting policies are balanced and do not kill the economic rights of business actors. This proposed regulation is also referred to as plain packaging.
Legal expert in state administration from Sebelas Maret University (UNS) Airlangga Surya Nagara explained that from a legal perspective, the plan to standardize the color of packaging is quite problematic. Because, there are two interests that are facing each other and need state protection. First, Law 20/2016 concerning Brands and Geographical Indications guarantees the exclusive right of registered brand owners to distinguish their products from other products in the market.
From the perspective of business actors, Airlangga continued, the plan to regulate the uniform packaging color has the potential to violate exclusive rights to brands which are intellectual property rights guaranteed by the constitution.
"This restriction is not merely a technical arrangement but an economic restriction on business actors operating in the field," Airlangga told the media, Thursday, July 16.
Second, there are two interests that both require the attention of the state, namely the protection of intellectual property rights and efforts to reduce the prevalence of smokers in Indonesia. To balance these two conflicting interests, according to Airlangga, the draft policy needs to be reviewed by carrying out regulatory impact analysis and involving stakeholders across sectors.
"The goal is that the policies that are formed are proportional, non-discriminatory, and not more restrictive than necessary to achieve health goals," he added.
Airlangga reminded, if the standardization of packaging colors is carried out through the total removal of designs, brands, and logos, it will violate the principle of Intellectual Property Rights (IPR) which aims to protect brand identity. In addition, this policy will go beyond the authority because it touches on constitutional matters related to restrictions on economic rights. According to him, this should be regulated in a law, not a technical regulation.
Moreover, in Article 435 of Government Regulation 28/2024 concerning the Implementation Regulation of Law Number 17 of 2023 concerning Health only mentions that the Ministry of Health has the authority to regulate the standardization of packaging consisting of design and writing, not to standardize the color of packaging as currently encouraged by the Ministry of Health.
In a separate opportunity, the General Chair of the Indonesian Retail Vape Association (ARVINDO) Fachmi Kurnia expressed support for the Government's efforts to reduce the number of smokers in Indonesia. However, Fachmi assessed that the uniformity of packaging colors needs to be considered the consequences if the rule is implemented. Especially on electronic cigarettes, packaging becomes a means for consumers to know various information such as product type, manufacturer identity, liquid content, to composition, before deciding to buy the product.
"Packaging is not only the identity of a brand, but also a media of information for consumers. If everything is made uniform, important information is actually more difficult for consumers to understand," explained Fachmi, Thursday, July 16.
Another concern, the standardization of packaging is opening up more space for illegal products. Moreover, the price is much cheaper than legal products. If this policy is implemented, the legal vape industry will be further depressed, and the country will lose tax and tax revenue.
"We are afraid that this will not happen. Do not let policies that aim to reduce consumption actually kill the legal industry, while the illegal industry continues to grow because legal and illegal products are increasingly difficult to distinguish," said Fachmi.
He hopes that the preparation of the RPMK will involve all stakeholders. So far, the Ministry of Health has minimally involved the electronic cigarette industry and the input from business actors and consumers has not been accommodated to the maximum.
"We certainly want to provide input so that public health goals can be achieved without sacrificing legal industries that obey the rules," he concluded.
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