Country: Kenya

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British American Tobacco Kenya, PLC v. Ministry of Health [Kenya] [November 26, 2019]

British American Tobacco Kenya filed a petition to the Kenya Supreme Court appealing a 2017 Court of Appeal decision upholding nearly all elements of Kenya’s Tobacco Control Regulations. The Supreme Court ruled that the tobacco company’s appeal had no merit, dismissed the petition in its entirety and affirmed the decision of the lower court.

Both lower courts upheld nearly all elements of the Regulations, which are designed to implement the Tobacco Control Act, including:

- a 2% annual contribution by the tobacco industry to help fund tobacco control education, research, and cessation;
- picture health warnings;
- ingredient disclosure;
- smoke-free environments in streets, walkways, verandas adjacent to public places and in private vehicles where children are present;
- disclosure of annual tobacco sales and other industry disclosures; and
- regulations limiting interaction between the tobacco industry and public health officials.

British American Tobacco Ltd v. Ministry of Health [Kenya] [February 17, 2017]

British American Tobacco (Kenya) appealed a 2016 court decision, which upheld nearly all elements of Kenya’s Tobacco Control Regulations. The appeals court ruled that the tobacco company’s appeal had no merit and affirmed the decision of the lower court. The earlier ruling upheld nearly all elements of the Regulations, which are designed to implement the Tobacco Control Act, including:

- a 2% annual contribution by the tobacco industry to help fund tobacco control education, research, and cessation;
- picture health warnings;
- ingredient disclosure;
- smoke-free environments in streets, walkways, verandas adjacent to public places and in private vehicles where children are present;
- disclosure of annual tobacco sales and other industry disclosures; and
- regulations limiting interaction between the tobacco industry and public health officials.

The appeals court agreed with the lower court that the tobacco company had been given adequate opportunities for participation in the development of the regulations and that the regulations do not violate the tobacco company’s constitutional rights. 

Republic of Kenya v. Director of Medical Services Ex-Parte BAT Kenya Ltd. [Kenya] [May 17, 2016]

British American Tobacco Kenya Limited ("BAT Kenya") challenged an order issued by the Director of Medical Services ordering BAT Kenya to stop selling Dunhill Switch and any other cigarette packs with the phrases "Crush the Capsule," "Switch the experience," "Refresh the taste," "Switch," and "Refreshing twist" on the grounds that these phrases constituted a promotional campaign in violation of the Tobacco Control Act. BAT Kenya objected to the order on jurisdictional grounds and also defended its packaging as non-promotional, arguing instead that it gave adult consumers instructions on how to use the product. The court did not examine the merits of the Director's decision, instead focusing on whether the Director followed fair procedure in taking its administrative action. The court concluded that the action was not undertaken fairly because BAT Kenya was not provided with an opportunity to respond or submit its view before the decision was made. As a result, the court quashed the Director's order and prohibited the Director from demanding that Dunhill Switch be removed from the market unless and until BAT Kenya was given a proper hearing on the issue.

British American Tobacco Kenya Ltd. v. Ministry of Health [Kenya] [March 24, 2016]

British American Tobacco (Kenya) filed a lawsuit claiming that Kenya’s Tobacco Control Regulations are unconstitutional. The court ruled against the tobacco company, finding that the process of developing the regulations was lawful and conducted with sufficient participation by the tobacco industry. The court upheld nearly all elements of the Regulations, which are designed to implement the Tobacco Control Act, including:

- a 2% annual contribution by the tobacco industry to help fund tobacco control education, research, and cessation;
- picture health warnings;
- ingredient disclosure;
- smoke-free environments in streets, walkways, verandas adjacent to public places;
- disclosure of annual tobacco sales and other industry disclosures; and
- regulations limiting interaction between the tobacco industry and public health officials.

The court specifically noted that the Tobacco Control Act and Regulations are intended to comply with the Framework Convention on Tobacco Control. Additionally, the court acknowledged the harm caused by tobacco products and stated it would make its decision within the context of a public health system balanced against the commercial rights of the tobacco company.

The court struck down a few minor elements of the regulations, ruling that (1) the tobacco industry is not required to provide evidence of its market share to the government; and (2) that penalties for violation cannot exceed the maximums authorized by law.

The court ruled that the regulations should take effect six months after the date of the decision.