British American Tobacco Ltd. v. Ministry of Health
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.
British American Tobacco Ltd v. Ministry of Health, et al, Civil Appeal No. 112 of 2016 (2017).
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.
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)
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.
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.
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.
Regulations may infringe on intellectual property rights, which may be protected by international treaties. The industry may argue that bans on "deceptive" packaging that eliminate the use of colors, numbers or trademarks threaten intellectual property rights.
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.
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.
A discussion on whether the regulations impose an undue burden on the tobacco industry. This argument may involve the costs of implementing regulatory measures.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"The appellants have not denied that tobacco products have negative side effects not only to the consumers but even other innocent persons who become passive smokers by inhaling second-hand smoke. Therefore, there 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."
"The solatium compensatory contribution does not amount to a tax imposition. Moreover, the contribution of 2% of the value of the tobacco products manufactured or imported, does not appear to be too high in the circumstances. It is indeed a small price that the appellant and those in the industry have to pay to mitigate the adverse effects of tobacco products. It is consistent with the State's obligation under Article 43(1)(a) of the Constitution to provide the highest attainable standard of health."
"The inequality of treatment in limiting interaction between the public officers/authorities and members of the tobacco industry does not amount to discrimination as it is dictated by the circumstances obtaining. Moreover, the limitation does not target only a specific group of players in the tobacco industry but applies to all players in the tobacco industry. We are satisfied that in ensuring the delicate balance of rights, the limitation of the appellant's rights is justifiable, reasonable and necessary under Article 24 of the Constitution to ensure the enjoyment of rights and fundamental freedoms by all individuals."
"...The tobacco industry cannot be compared to manufactures of other products. The need for regulation and control is apparent from the Tobacco Act. Players in the tobacco industry cannot expect equal treatment with other industries as due to the harmful effect of tobacco products, the State is under obligations to protect the health of its citizens, both consumers and non-consumers of tobacco products. In light of the side effects, there is a clash of rights that demands a delicate balance. The object of the Tobacco Act as set out in Section 3 of the Act includes protection of health of individuals including smokers and non-smokers against the ill effects of tobacco products. It would have been remiss for the learned judge not to take into account the side effects of the tobacco products and the need for control and regulations as this is relevant in balancing the competing rights and justification for limitation of any rights."
"The appellants have maintained that the consultations and interactions did not provide adequate public participation or concentration. In our view, this submission goes against the weight of the evidence that clearly reveals meetings, discussions and communications regarding the Regulations prior to their publication. What the appellant is really saying is that although they had their say, their views were not adequately considered. However, the fact that the views of the appellants and the interested parties did not carry the day was neither here nor there. All that the learned judge needed to establish was the fact that that step of involving the public and any other affected persons was taken. Given the facts that were before the learned judge, we have no reason to fault the learned judge for finding that the stakeholder meetings, communications, and discussions constituted adequate public participation and consultation."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
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.