British American Tobacco Kenya, PLC v. Ministry of Health

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 Kenya, PLC v. Ministry of Health, et al., Supreme Court of Kenya Petition No. 5 of 2017 (2019).

  • Kenya
  • Nov 26, 2019
  • Supreme Court of Kenya

Parties

Plaintiff British American Tobacco Kenya, PLC

Defendant

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

Third Party

  • Consumer Information Network
  • Kenya Tobacco Control Alliance
  • Mastermind Tobacco (K) Limited

Legislation Cited

International/Regional Instruments Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"We find that there is no way the Regulations can be legitimately made without the [Cabinet Secretary] for Health factoring in the consequences and/or impact of Tobacco use. Such an approach will be akin to the proverbial ostrich burying its head in the sand. In any event, the effects of Tobacco are now subject of much national and international documentation and discussions."
"[T]here are public health needs that have to be balanced against the intellectual property rights of the appellant and other tobacco industry players, in order to determine whether limitation of the appellant's intellectual property rights is justified. This requires demonstration that the societal need for the limitation of the intellectual property rights outweighs the individual right to enjoy the rights to intellectual property. We take the view that although [the disclosure obligations] limits the intellectual property rights of the tobacco industry players, that limitation is reasonable and justifiable under Article 24 of the Constitution as they are meant for counteractive measures to control and mitigate tobacco related health problems. The disclosure requirements are therefore, neither unconstitutional nor ultra vires nor unlawful."