Big tobacco says documents obtained under freedom of information laws prove the federal government is on shaky ground when it comes to mandating plain packaging for cigarettes.
British American Tobacco Australia (BATA) has taken its fight to get access to one particular document to the Federal Court.
But it said documents already obtained under FOI laws showed plain packaging would impinge on tobacco companies' trademark rights.
Under Labor's proposal, cigarettes would be sold in matt olive green packets because that's the colour found to be least appealing to smokers.
There would be no obvious logos but there would be large pictures of the physical damage caused by smoking.
An April 2010 briefing note from the government body which administers Australia's intellectual property rights system states that such packaging "would impinge on this (trademark) right".
But IP Australia says the key issue is whether plain packaging serves the public interest.
"Such restrictions should only be introduced if there is a clear public interest to be served," the briefing note obtained by BATA states.
"Notably, analysis of the public interest need should be based on strong empirical evidence."
BATA spokesman Scott McIntyre said there was no such evidence and removing trademarks would result in the government having to pay the industry billions of dollars in compensation.
"The health minister is yet to reveal any real proof that plain packaging will reduce smoking rates and she has continually refused to release any legal advice which actually supports the untested legislation," he said.
Indeed, IP Australia acknowledged that a 1995 Senate report concluded there was insufficient evidence to demonstrate generic packaging was effective in achieving health policy objectives.
It wrote in its April 2010 note that: "IP Australia is unaware of any subsequent evidence that establishes that the public interest would be better served by plain packaging."
BATA believes that advice proves "the key body for intellectual property in Australia advises the Australian government ... there is no evidence the public interest is better served by plain packaging".
The federal government admits the actual impact on smoking rates can't be calculated yet because no other country has trialled plain packaging.
But it says research suggests generic packs will reduce the product's appeal, particularly to young people, limit the ability of companies to mislead consumers and increase the effectiveness of health warnings.
It was revealed in October 2010 the tobacco industry had lodged 19 FOI requests with the health department, ahead of possible legal action against Labor's reforms.
The requests sought thousands of official papers dating back to the early 1990s.
But there's one document BATA hasn't been given and it's taken the fight to the Federal Court.
Mr McIntyre said the industry wanted to see legal advice from the commonwealth attorney-general, referred to in a 1997 government response to a Senate report into the cost of tobacco-related illness.
"This is the one they're holding back," he told AAP on Thursday.
"The minister has continually refused to release legal advice or anything supporting the legislation - that's why we're going to the Federal Court."
Comment is being sought from federal Health Minister Nicola Roxon and her department.
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