TOBACCO CONTROL LAWS

British American Tobacco Kenya Ltd. v. Ministry of Health

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. 

British American Tobacco Kenya Ltd. v. Ministry of Health, Petition No. 143 of 2015, High Court of Kenya (2016).

  • Kenya
  • Mar 24, 2016
  • High Court of Kenya at Nairobi, Constitutional and Human Rights Division
View Case History Download Document

Parties

Plaintiff British American Tobacco Kenya Ltd

Defendant

  • Attorney General
  • Cabinet Secretary for the Ministry of Health
  • Tobacco Control Board

Third Party

  • Consumer Information Network
  • Kenya Tobacco Control Alliance

Legislation Cited

Tobacco Control Regulations, 2014

International/Regional Instruments Cited

WHO Framework Convention on Tobacco Control (WHO FCTC)
WHO FCTC Article 5.3 Guidelines
WHO FCTC Articles 9 & 10 Partial Guidelines

Related Documents

KETCA Application for Enjoinment Interested Parties' Submissions Interested Parties' List of Authorities

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.

Tobacco Control Topics

Industry Interference
Measures to protect health policies from the commercial or other vested interests of the tobacco industry. (See FCTC Art. 5.3)
Smoke Free Measures
Measures to reduce or eliminate exposure to tobacco smoke. (See FCTC Art. 8)
Contents and Disclosures Measures
Measures for testing, measuring, regulating, or disclosing the contents and emissions of tobacco products. (See FCTC Arts. 9 and 10)
Packaging and Labeling Measures
Measures to regulate the marketing on tobacco packages. This includes both bans on false, misleading, deceptive packaging, as well as required health warnings on packaging. (See FCTC Art. 11)

Substantive Issues

Right to Equal Protection
A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
Right to Procedural Due Process
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
Right to Property
A violation of property rights, sometimes in the form of an expropriation or a taking by the government. The tobacco industry may argue that regulations amount to a taking of property rights because they prevent the use of intellectual property such as trademarks.
Excessive Delegation of Authority to the Executive
The legislative branch, through its tobacco control legislation, may have granted too much authority to the executive branch to implement measures administratively.
Non-Mandatory WHO FCTC Guidelines
The WHO FCTC Guidelines are not mandatory for Parties and merely suggest policies, or a discussion on the effect of the Guidelines on national legislation.
Procedural Defect
The court might consider procedural matters without touching the merits of the case. These might include: improper joinder, when third parties, such as Health NGOs or government officials, seek to become parties to the suit; lack of standing, where a plaintiff fails to meet the minimum requirements to bring suit; lack of personal jurisdiction, where the court does not have jurisdiction to rule over the defendant; or lack of subject matter jurisdiction, where the court does not have jurisdiction over the issue at suit.
Ultra Vires Regulation
Subsequent regulations exceed the scope of the originating law.

Type of Tobacco Product

None

"The petitioner has not placed anything before me that demonstrates that the implementation of the Convention [WHO FCTC] or the Guidelines is in any way in conflict with the Constitution or national legislation on tobacco control. Further, Article 2 (5) and (6) recognize that the general rules of international law and any international treaty or convention to which Kenya is a party shall form part of the law of Kenya. I have not seen anything that would bar the implementation of the WHO Convention, and I am therefore constrained to find that there is no merit in this attack on the Regulations by the petitioner."

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