PROPERTY AND PROPORTIONALITY: EVALUATING IRELAND’S TOBACCO PACKAGING LEGISLATION

This article evaluates the constitutionality of the restrictions upon tobacco packaging in Ireland in the Public Health (Standardised Packaging of Tobacco) Act 2015 and Part 5 of the Health (Miscellaneous Provisions) Act 2017 . Australia is the only country to have commenced this legislative process earlier, so the Irish experience (and, in particular, an analysis of the constitutionality of the Irish legislation) could provide a roadmap for other jurisdictions aiming to implement similar restrictions. This article concludes that public health and the protection of children constitute pressing and substantial reasons sufficient to justify as proportionate these Acts’ restrictions upon tobacco companies’ property rights protected by the Irish Constitution


INTRODUCTION
On 10 March 2015, Ireland became the second country in the worldafter Australiato enact legislation requiring standardised tobacco packaging; and, after amendment, it came fully into force on 29 September 2017. 1 The legislative regime prohibits all forms of branding (including trade marks) from appearing on tobacco packaging, except for brand names which will have to be presented in a standard typeface on packages, which must all be in the prescribed colour.
Although early Irish tobacco legislation mainly covered excise matters, 2 tobacco is now increasingly being regulated for public health reasons, and the current packaging legislation is simply the most recent example in a long line of tobacco control legislation. Hence, the regulation of tobacco advertising in Ireland began in 1978; 3 the regulation of the sale of tobacco products began in earnest in 1988; 4 and a comprehensive system to regulate the sale and consumption of tobacco productsincluding the world's first outright ban on smoking in the workplacewas Society of Ireland. 17 In PJ Carrolls v Minister for Health and Children, 18 constitutional property rights were central to the tobacco industry's challenge to tobacco advertising prohibitions in the Public Health (Tobacco) Act 2002; they were central to the industry's challenge to the Australian legislation; 19 and they would doubtless be equally central to any challenge to the Irish packaging legislation. Such property rights challenges have failed in the High Court of Australia 20 and the Court of Justice of the European Union; 21 they are likely to fail in the European Court of Human Rights; 22 and it is the conclusion of this article that they would also fail in Ireland.
Part II of this article therefore briefly describes the restrictions upon the use of trade marks and other branding that potentially engage constitutional property rights. Part III describes the integrated constitutional protection of property; and it considers the extent to which it is likely to be engaged by restrictions on the tobacco companies' use of their trade marks. Part IV considers the pressing and substantial reasons which the state may proffer to seek to justify the restrictions in the packaging legislation upon constitutional property rights. The state's interests in the promotion of public health in general, and the protection of children in particular, have been relied upon to sustain important legislation in the past; and this Part considers the extent to which they may be relied upon by the state in this context. Part V considers the extent to which the restrictions thereby justified satisfy the proportionality and rationality standards of review or scrutiny.
Part VI concludes that, if the restrictions on constitutional property rights in the 2015 Act and in Part 5 of the 2017 Act are challenged by the tobacco companies, the courts will almost certainly find that those Acts are constitutionally valid.

II RESTRICTIONS
The restrictions prescribed by the Irish packaging legislation are extensive and broadly of three kinds. In general, many elements of tobacco packaging are prohibited, others are regulated, and still others are required. These three strategies affect the tobacco companies' intellectual property rights. For example, branding and trade marks on wrappers 23 are prohibited; the appearance of 17  branding 24 and the location of brand-names 25 are regulated; and the shape of packets, 26 and the colours of all parts of packaging 27 not taken up by the health warnings and images that have long been mandatory 28 must be as required. Moreover, the Minister has power to make orders 29 prescribing the details of standardised packaging for every brand on the market. Furthermore, tobacco packaging shall 'not bear a mark or trade mark' except as permitted pursuant to the 2015 Act. The general powers relating to the regulation of packaging, and the specific rules relating to trade marks, will certainly control the use of trade marks uponand potentially even effectively ban trade marks fromtobacco packaging.
In all of these ways, therefore, the tobacco companies' intellectual property rights are plainly affected by the restrictions in the Irish packaging legislation. The question therefore arises whether their constitutionally protected property rights are thereby engaged.

III RIGHTS
The tobacco companies' property 30 rights are potentially engaged by these restrictions for two reasons. First, there are restrictions on what tobacco companies can do with the packets of their products. Second, their intellectual property rights are affected; in particular, their trade marks are banned on wrappers and restricted and potentially prohibited on packaging. A
On the one hand, Article 43 is directed to the state. The first half of the article is a muscular assertion of the institution of private property: by it, the state acknowledges 'the right to the private ownership' and guarantees 'to pass no law attempting to abolish' that right. 34 However, the second half of the article provides the state with a relatively wide scope for manoeuvre in restricting the exercise of property rights: it authorises 35 the state to regulate the exercise of property rights on the basis of 'the principles of social justice' and to delimit their exercise on the basis of 'the exigencies of the common good'. On the other hand, Article 40.3.2 is directed to citizens. It provides that the state shall 'by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the … property rights of every citizen'. On the other hand, many pieces of legislation relating to the regulation of pensions, and of markets, trades, professions, businesses, and industries, have survived constitutional challenge. 44 For example, the regulation of taxis has been upheld on several occasions. 45 In Maher v Minister for Agriculture, Food and Rural Development, 46 the Supreme Court upheld the Irish implementation of an EU system of quotas of milk production and levies for over-production. Moreover, in PC v Minister for Social Protection, 47 the Court held that a statutory pension that could be varied from time to time, could not constitute a 'property right' within the meaning of the Irish Constitution. C

Property and Tobacco Packaging
The restrictions in the Irish packaging legislation do indeed restrict tobacco companies' use of their property. While they are being manufactured and until they are sold, the packets of tobacco products are the property of the tobacco companies, and so the various restrictions on the packaging of those products are restrictions on the companies' use of their property. Moreover, the provisions regulating packaging permit the Minister to make orders to require standardised packaging, which will not be allowed to bear a trade mark, except as permitted pursuant to the 2015 Act. 48 This will certainly control the use of trade marks upon tobacco packaging. Furthermore, it seems to be the government's intention to rely on these powers to go further and ensure 'that all forms of brandingtrade marks, logos, colours and graphicswould be removed from tobacco packs'. 49 Indeed, the matters prohibited on wrappers include trade marks. 50 If a trade mark is a form of property, then a control or prohibition on the use of trade marks would be a restriction on the companies' use of their property.
However, at least three hurdles must be jumped before it can be concluded safely that these restrictions engage the integrated constitutional protection of property. 51 First, no relevant property right may be engaged, either because none arises on the facts, 52 or because the particular interest relied upon by the plaintiff does not possess sufficient characteristics of 'proprietorship and dominion' 53 to count as property for the purposes of the constitutional protection of property. Since the scope of that protection is remarkably capacious, 54 the interest relied upon would have to be uncommonly precarious for it not to count. Even so, there is a line between property rights that are constitutionally protected and other interests that are not. On the former side of the line lie real property, 55 personal property, 56 money, 57 shares, 58 the benefit of contractual rights, 59 causes of 48 2015 Act, ss 7(1)(c), 9(1)(c), 10(1)(c), but see s 5(1). 49  action, 60 and lawful market street trading rights. 61 Sitting astride the line are various pensions 62 and licences. 63 And, since the Supreme Court has held that milk quotas cannot be equated to a right of property, 64 they are clearly on the other side of the line.
As to the restrictions imposed by the packaging legislation, the general restrictions on packaging restrict the tobacco companies' use of their chattels, which plainly engage the constitutional protection of property. As to the particular restrictions uponand potential prohibitions onthe tobacco companies' use of their trade marks, it is clear that trade marks possess sufficient characteristics of proprietorship and dominion to count as property to engage the constitutional protection of property rights. Intellectual property rights are similar to personal property, the benefit of contractual rights, causes of action, and street trading rights, which have all been held to count; and although they are probably close to the line straddled by pensions and licences, they are not on the other side of it with milk quotas. Hence, copyright has been held to constitute 'a right of private property within the meaning of article 40.3.2 and article 43.1 of the Constitution'. 65 Similarly, in the context of the tort of passing off, a trading reputation has also been held to constitute a property right. 66 By parity of reasoning, trade marks would, in an appropriate case, likewise be held to constitute constitutionally protected property rights. 67 Indeed, the point is potentially stronger in relation to trade marks than it is in the context of passing off. The state registers and regulates trade marks, affording them a high level of protection; whereas unregistered rights protected by actions like passing off may not attract as high a level of protection. Hence if the latter are constitutionally protected property rights, so also must the former be. Indeed, in Maher v Minister for Agriculture, 68 Keane CJ came very close to holding that trade marks are constitutionally protected property rights. In rejecting the submission that a fishing quota amounted to property, he did not 'find that any assistance is to be derived from comparisons with patents, trade marks or copyright rights which under our legal system are nowadays generically described as "intellectual property rights"'. 69 It is therefore clear that trade marks are property rights for the purposes of the constitutional protection of property.
The second hurdle to be jumped to reach the conclusion that constitutional protection of property is engaged by restrictions on the tobacco companies' property and trade marks is that, whilst there may be a relevant property right, what looks like a restriction may turn out not to be so on the facts. 70 For example, the restrictions imposed by the Irish packaging legislation upon the tobacco companies' use of their trade marks are likely to have a negative impact on the value of their brands in general and of their trade marks in particular. 71 However, this diminution in value may not necessarily amount to a restriction on the tobacco companies' property rights: 'a change in the law which has the effect of reducing property values cannot in itself amount to an infringement of constitutionally protected property rights'. 72 On the other hand, there remains a wide range of restrictions on packaging and on the use of trade marks, and these restrictions will certainly engage the integrated constitutional protection of property.
Third, there may indeed, on the facts, be a restriction on a relevant property right, but it may turn out not to be one the plaintiffs can challenge. For example, article 40.3.2 refers to the 'property rights of every citizen', and article 43.1.1 provides that 'man, in virtue of his rational being' has the right to the 'private ownership of external goods'. The emphasised words in these provisions might well have confined the enjoyment of the constitutional protection of property to natural persons who are citizens. Nevertheless, it is now well established that such protections may also be enjoyed by corporate entities 73 and non-citizens. 74 Therefore a challenge by the tobacco companies to the Irish packaging legislation would almost certainly not be excluded on this ground. 69

IV REASONS A Pressing and Substantial Reasons
In general, where there is a restriction upon a constitutional right, the state may advance 'pressing and substantial' 75 reasons to seek to justify the restriction. The textual limitations on the integrated constitutional protection of property are threefold: the state's obligation in article 40.3.2 is to protect 'as best it may' citizens' property rights, whilst article 43 permits restrictions on the basis of 'the principles of social justice' 76 (article 43.2.1) and 'the exigencies of the common good' (article 43.2.2). 77 It would be unwise to overparse the similarities and differences between these concepts, 78 or the public policy underlying impugned legislation or the legitmate aim pursued by it. 79 Rather, they are simply different assertions of the same point that the state may advance 'pressing and substantial' reasons to seek to justify a restriction upon a right. The state can lead expert evidence on these issues. 80  C

Protection of Children
The protection of children was another of the justifications offered for the Act by the Minister, 93 and it has been accepted by the European Court of Human Rights as an aim which the state may legitimately pursue in limiting property rights. 94 In Landers v Attorney General, 95 Finlay J held that the protection of children must be part of the common good. Moreover, the state may also argue that such concerns implicate the state's duty to vindicate children's rights, 96 which are expressly secured by article 42A.1 of the Constitution. For these reasons, the concerns to protect children underpinning the Irish packaging legislation would almost certainly constitute pressing and substantial reasons upon which the state may seek to justify standardised packaging restrictions. So too would the state's interests in the promotion of public health. These conclusions hold, whether those concerns or interests are described as principles of social justice, exigencies of the common good, strong public policies, legitimate aims, or pressing and substantial reasons.

V REVIEW
It is clear that, where there is a restriction upon a right, the state may advance 'pressing and substantial' reasons to seek to justify the restriction. However, it is not enough for the state to advance such reasons; those reasons must support and justify the restrictions, and not go too far in doing so. On this question of review or scrutiny, following the lead of the European Court of Human Rights 97 and the Supreme Court of Canada, 98 the Irish Supreme Court has strongly committed to a proportionality test to review or scrutinise legislative restrictions upon constitutional rights; in particular, the impugned legislation must: The Court has applied this test in the context of the integrated constitutional protection of property. 100 And it would almost 101 certainly be applied in any challenge by tobacco companies to the packaging legislation. A

Rational Connection
The first of the three steps in the Irish proportionality test is a requirement of a rational connection: the impugned legislation must be rationally connected to the pressing and substantial reasons advanced by the state, and not be arbitrary, unfair or based on irrational considerations. Hence, a court ruling that restrictions were 'impermissibly wide and indiscriminate' 102 is now explained as the application of a proportionality test. 103 Similarly, a ruling that restrictions were 'shot through with unnecessary anomalies and inconsistencies' 104 is well on course to being explained in similar terms. 105 Moreover, restrictions that are 'arbitrary' 106 or 'discriminatory' 107 have also been held disproportionate. On the other hand, regulations that were 'neither capricious nor arbitrary' 108 have been upheld easily.
The requirement of a rational connection assesses the strength or weakness of the state's reasons for the restriction. The less pressing and substantial they are, the less likely is it that a restriction will be considered proportionate. For example, the state failed to provide adequate reasons to justify an anomalous and unfair system of agricultural rates based upon land values set in 1852. 109 Conversely, where the reasons are more pressing and substantial, a restriction is more likely to be upheld as proportionate. For example, an 'extreme financial crisis or fundamental disequilibrium in the public finances', 110 could justify very significant restrictions indeed.
The question here, then, is whether the Irish packaging legislation passes the requirement of a rational connection. Subject to the evidence on this point that might be run in any challenge, the answer would almost certainly be yes. The state's interests in the promotion of public health and in the protection of children (discussed above) are pressing and substantial reasons; the packaging legislation is clearly rationally connected to them; and it does not seem to be arbitrary, unfair or based on irrational considerations. 111 B

Minimal Impairment
The second of the three steps in the Irish proportionality test is a requirement of minimal impairment: the impugned legislation must impair the engaged right as little as possible. That is, the interference must not exceed what is necessary to meet the pressing and substantial concerns in question, and must be the least possible interference with the right consistent with the advancement of those of those concerns. 112 Hence, the imposition of 'relatively minor' 113 burdens or 'limited' 114 intrusions upon rights, or restrictions that are not material, 115 have been held to be minimal and thus proportionate interferences with those rights.
The requirement of minimal impairment assesses the strength or weakness of a restriction upon a right. A control upon property is less intrusive than the expropriation of the property, so control is more likely to be a proportionate restriction than expropriation. On the one hand, the imposition of a prospective charge for health services was held to be a limited and proportionate restriction on rights. 116 On the other hand, the imposition of a retrospective charge for health services (to validate payments unlawfully exacted) was held to be an extensive and disproportionate expropriation. 117 The question here, then, is whether the Irish packaging legislation passes the requirement of minimal impairment. Again, subject to the evidence on this point that might be run in any challenge, the answer would almost certainly be yes. There are pressing and substantial reasons; the packaging legislation, whilst extensive, seems to impair the engaged property rights as little as possible; in particular, there do not seem to be any plausible less restrictive means available to the state to the achieve the same ends. 118 C

Proportional Effects
The third of the three steps in the Irish proportionality test is a requirement of proportional effect: the effects of the impugned legislation on the engaged rights must be proportional to the pressing and substantial reasons advanced by the state. On the one hand, where even a minor transgression has an excessive consequence, 119 the legislation will be disproportionate and unconstitutional. Again, where the effects of the legislation fall excessively upon one person or group, 120 for the benefit of another group 121 or even of society as a whole, 122 the legislation will be disproportionate and unconstitutional. On the other hand, it is entirely proper that the State should insist that those who profit from an industrial process should manage it as safely, and with as little danger to health, as possible. The cost of doing the job safely and in a healthy manner is properly regarded as part of the industrialist's costs of production.
Likewise it is proper that he should pay if he pollutes the air, the land or the rivers. It would be unjust if he were allowed to take the profits and let society carry the cost. 123 This plainly covers the position of the tobacco industry. Even if the Irish packaging legislation could be called into question on the basis that its effects fall excessively upon the tobacco companies, it is entirely proper that the state should insist that those who profit from tobacco should market it with as little danger to health as possible. It would be unjust if the tobacco companies were to be allowed to take the profits and let society carry the cost of healthcare, a cost that would be reduced if the restrictions in the packaging legislation were effective.
The requirement of proportional effects assesses the strength or weakness of the right which the state has pressing and substantial reasons to restrict: the more central the restricted activity is to the enjoyment of the right in question, the less likely the restriction will be proportionate, whereas the further the restricted activity is from the core of the right, the more likely a restriction is to be proportionate. Trade marks may not be central to the integrated constitutional protection of property. For example, where licences are created by law, not only may they be regulated in the interests of the common good, 124 but they are also 'subject to the conditions created by law and to an implied condition that the law may change those conditions'. 125 There are similar comments in respect of pensions 126 and copyright. 127 It is just as true of trade marks.
The question here, then, is whether the Irish packaging legislation passes the requirement of proportionate effects. Again, subject to the evidence on this point that might be run in any challenge, the answer would almost certainly be yes. The effects do not fall excessively upon the tobacco companies, and their property rights are not central to the freedoms or protections engaged by the restrictions in the packaging legislation.

D Deference
The courts are particularly reluctant to second guess legislative judgments on controversial 128 or sensitive 129 social, economic and medical matters and on major issues of national policy. Accordingly, in applying the three steps of the proportionality test, courts often afford a great deal of deference to the state. 130 This may 'be an application of the presumption of constitutionality', 131 by which legislation enacted by the Oireachtas after the Constitution came into force in 1937 is presumed to be constitutional, unless and until the contrary is clearly established. 132 The Court has applied this presumption in the context of the integrated constitutional protection of property, 133 and the packaging legislation would almost certainly benefit from it and from any attendant judicial deference to legislative judgment.
This presumption of constitutionality leads to two further presumptions. First, it is presumed that the Oireachtas intended a constitutional construction of legislation; so where constitutional and non-constitutional constructions are reasonably open, the Court must choose the constitutional one. 134 Again, the Courts have applied this presumption in the context of the integrated constitutional protection of property, 135 and the Irish packaging legislation would almost certainly benefit from it. Second, the presumption of constitutionality leads to the further presumption that a statutory discretion will be exercised constitutionally 136 and that fair procedures will be followed. 137 Again, the Courts have applied this presumption in the context of the integrated constitutional protection of property. 138 The making of a statutory instrument by the Minister for Health, pursuant to the discretion conferred by the packaging legislation, 139 would almost certainly benefit from this presumption too.

Lower and Variable Standards of Review
The Supreme Court applies the proportionality test in a flexible or variable fashion, assessing the strengths and weaknesses of the restrictions, rights and reasons at issue in the cases. 140 But it also seems to have developed an alternative, lower standard of review. In particular, where it considers that the Oireachtas is essentially engaged in a balancing of constitutional rights and duties, the Court effectively applies a rationality test rather than a proportionality test. In such cases, the role of the Court is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual's constitutional rights. 141 This rationality test is a lower, less stringent, more tractable standard of review or scrutiny than the three-step proportionality test. Even so, legislation can fail this test 142 and be found unconstitutional. If the Irish packaging legislation is justifiable not only on the basis of the state's interests in public health and the protection of children, but also on the basis of constitutional rights, 143 then the state may seek to argue that its constitutionality should be assessed on the basis of this rationality standard rather than on the basis of the stricter three-step proportionality standard. And if the rationality test were to applied, then the packaging legislation would almost certainly survive review or scrutiny; it could not be said that the balance of rights contained in the packaging legislation is 'so contrary to reason and fairness' as to constitute an unjust attack on the tobacco companies' property rights. F

Absence of Review
It was not always clear that legislation restricting rights will be subjected to a standard of review or scrutiny. In Attorney General v Southern Industrial Trust, it was enough for Lavery J that the legislation restricting the plaintiff's property rights was directed to the constitutionally-sanctioned legitimate aims of the 'exigencies of the common good' and the 'principles of social justice'. 144 He did not go on to subject that aim to further review or scrutiny, to determine for example whether the restriction went too far in the pursuit of that aim. Moreover, there is an oft-repeated dictum of Walsh J in Dreher v Irish Land Commission that might mean that legislation authorised by the principles of social justice or the exigencies of the common good in article 43 cannot amount to an unjust attack for the purposes of article 40.3. 145 These cases predate the development of the proportionality and rationality standards of review or scrutiny discussed above. To the extent that they could preclude further review or scrutiny once a pressing and substantial reason to justify the legislation has been established, then they can no longer be right. It is unthinkable that the Irish packaging legislation would not be subject to some standard of review or scrutiny. The only question is which one: a tractable rationality test, or a more stringent three-step proportionality test. However, it is clear that the packaging legislation would almost certainly satisfy any applicable test.

VI CONCLUSION
The tobacco companies' litigation strategy 146 has seen them challenge legislation restricting tobacco packaging in many jurisdictions and before international tribunals. These cases can turn as much on general principles common to many constitutions and treaties as they can on the specifics of a particular constitutional text. The proportionality analysis of the Court of Appeal for England and Wales in British American Tobacco v Secretary of State for Health 147 probably supplies an example of the former; 148 whereas the analysis of the concept of 'acquisition of property' in section 51(xxxi) of the Australian Constitution by the High Court of Australia in JT International v Commonwealth probably supplies an example of the latter. 149 The one constant is that the tobacco companies invariably lose. Any challenge to the Irish packaging legislation would have a similar outcome.
Restrictions upon rights can be justified by reasons which survive review. The Public Health (Standardised Packaging of Tobacco) Act 2015 and Part 5 of the Health (Miscellaneous Provisions) Act 2017 together provide for comprehensive standardised packaging of tobacco products. In particular, there will be strict regulations upon, perhaps even prohibition of the use of trade marks and other branding. These restrictions potentially engage the integrated protection of property contained in the Irish constitution. This provides a largely stable and relatively coherent basis for analysis and development. The Irish packaging legislation does in fact restrict the tobacco companies' use of their property, especially trade marks, and the integrated constitutional protection of property is engaged by these restrictions, albeit that statutorily contingent property is not at the core of that protection. In public health and the protection of children, the state has substantial and pressing reasons for the restrictions; and it may even be said that it is vindicating its citizens' rights to health and bodily integrity in general, and children's rights in particular.
In reviewing the impact of the restrictions in the packaging legislation on the tobacco companies' property rights against that backdrop, the legislation must satisfy a three-step proportionality test of rational connection, minimal impairment, and proportional effects. Because statutorily contingent property is not at the core of the integrated constitutional protection of property, it is easier to restrict it proportionally. Moreover, it is unjust for the tobacco companies to continue to take the profits but let society carry the cost of healthcare, a cost that would be reduced if the restrictions in the packaging legislation were effective. However, if the Supreme Court considers that the Irish packaging legislation seeks to balance the tobacco companies' speech and property rights against citizens' right to health, and children's rights, then the legislation would have to satisfy only a rationality test, which it would satisfy easily.
Ireland has been in the vanguard of tobacco control worldwide. With the Public Health (Standardised Packaging of Tobacco) Act 2015 and Part 5 of the Health (Miscellaneous Provisions) Act 2017, it continues to set a very important example. Any challenge from the tobacco industry on property grounds is likely to fail. And Ireland's children and public health will be all the better for that.