British American Tobacco South Africa (PTY) Ltd. v. Minister of Health
British American Tobacco South Africa Limited (BAT) sued the Minister of Health and others claiming that the Tobacco Products Control Act was unconstitutional. BAT claimed that the Act, which prohibits the advertising or promotion of tobacco products, violated their freedom of expression by denying them the ability to communicate one-to-one with adult consumers and violating the right of consumers to receive information concerning tobacco products. BAT lost at the trial court and appealed. To determine if the limitation on speech was justified, the Appeals Court balanced the right of smokers to receive information concerning tobacco products against the government’s obligation to take steps to protect its citizens from the dangers of tobacco. The Court found that the hazards of smoking far outweigh the interests of the smokers as a group, so the limitation was justified. Further, the Court stated that South Africa is a Party to the Framework Convention on Tobacco Control, and is obliged to have regard for the requirements of that treaty, specifically Article 13, which requires that Parties ban all tobacco advertising, promotion, and sponsorship. For these reasons, the lower court’s decision was affirmed.
BATSA v. Minster of Health, No. 463/2011, Supreme Court of Appeal of South Africa (2012).
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.
A violation of the right to expression, free speech or similar right to express oneself without limitation or censorship. The industry may claim that a regulation infringes on their right to communicate with customers and the public. Similarly, they may claim that mandated warnings infringe on their freedom to communicate as they desire.
A violation of the public’s right to information. The tobacco industry may claim that advertising, promotion or sponsorship, or packaging regulations limit the industry’s ability to communicate information to their customers and therefore infringes on the customer’s right to receive information, and to distinguish one product from another. Alternatively, public health advocates may claim that tobacco industry misinformation violates their right to accurate information or that government must be transparent in its dealings with the tobacco industry.
A claim of a violation of a tobacco control law or statute.
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 right to commercial speech in the context of this case is indeed important. But it is not absolute. When it is weighed up against the public health considerations that must necessarily have been considered when imposing the ban on advertising and promotion of tobacco products it must, I think, give way. The seriousness of the hazards of smoking far out weigh the interests of the smokers as a group."
"This approach is reflected in British American Tobacco UK Ltd & others v The Secretary of State for Health: "The protection of health is a far reaching social policy. The right to commercial free speech, while less fundamental than political or artistic free speech, is protected by the Convention and restrictions must be justified. However, it will be principally for the decision maker to resolve how best the aim can be achieved by restricting promotion of extremely harmful but historically lawful products. While the test of "proportionality" cannot be escaped, the need for advertising restriction on tobacco products is not substantially in issue and we are dealing with a restriction on the very edge of a much wider restriction that is not challenged nor is capable of challenge.""
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 South Africa Limited (BAT) sued the Minister of Health and others claiming that the Tobacco Products Control Act was unconstitutional. BAT claimed that the Act, which prohibits the advertising or promotion of tobacco products, violated their freedom of expression by denying them the ability to communicate one-to-one with adult consumers and violating the right of consumers to receive information concerning tobacco products. BAT lost at the trial court and appealed. To determine if the limitation on speech was justified, the Appeals Court balanced the right of smokers to receive information concerning tobacco products against the government’s obligation to take steps to protect its citizens from the dangers of tobacco. The Court found that the hazards of smoking far outweigh the interests of the smokers as a group, so the limitation was justified. Further, the Court stated that South Africa is a Party to the Framework Convention on Tobacco Control, and is obliged to have regard for the requirements of that treaty, specifically Article 13, which requires that Parties ban all tobacco advertising, promotion, and sponsorship. For these reasons, the lower court’s decision was affirmed.