British American Tobacco South Africa (PYT) Ltd. v. Minister of Health

The applicant, a tobacco company manufacturer, argued that the tobacco control law's provision prohibiting the advertisement or promotion of tobacco products through any direct or indirect means did not apply to one-to-one communications with consenting adult tobacco users or, in the alternative, is unconstitutional. Emphasizing that one of the purposes of the law is to encourage existing smokers to stop smoking, the High Court held that the law must be interpreted as prohibiting one-to-one communication. The Court also upheld the constitutionality of the law, reasoning that limiting the right to freedom to receive or import information to consenting adult tobacco consumers is reasonable and justifiable.

British American Tobacco South Africa (PTY) Ltd. v. Minister of Health, 60230/2009, High Court of South Africa, North Gauteng, Pretoria (2011).

  • South Africa
  • May 19, 2011
  • High Court of South Africa, North Gauteng, Pretoria

Parties

Plaintiff British American Tobacco South Africa (PTY) Ltd.

Defendant Minister of Health

Legislation Cited

Tobacco Products Control Act 83 of 1993 (as amended)

Tobacco Products Control Amendment Act 63 of 2008

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"[I] am of a strong, view that protection of "public health interest" is one of the fundamental rights that override the interest of an individual including that of the applicant The right to freedom of expression is not absolute and cannot override the interest of the democratic society. Advertising of a tobacco product is made solely for the interest of a person with a sole purpose of persuading or enticing members of the public to patronise the product In fact, the main purpose of advertising tobacco product is to promote the use of the harmful product which often becomes fatal even to the consenting adult tobacco consumers The tobacco is more harmful to passive smokers especially children who find themselves, without choice, in motor vehicle(s) in which a smoker is a passenger and smoking. [I] accept that tobacco product(s) is one of the sources that generate enormous revenue for the applicant and the state through taxes."
"The purpose of section 3(1)(a) of the Act is to limit communication of tobacco product on one-to-many including the means the applicant relies on as one-to-one with consenting adult tobacco consumers. It is clear from the wording of the impugned prohibition that the Parliament intends to protect public health by encouraging existing smokers to stop smoking, discouraging non smokers from starting and to educate members of the society on health risks that flow from tobacco consumption."
"Considering the objectives of the Act set out, I am of the view that impugned prohibition be interpreted to prohibit one-to-one communication This will, in my view, promote the spirit, purport and objectives of the Act Even the applicant concedes that the general purpose of the Act is to encourage consenting adult tobacco users to stop using tobacco products. How will the said objectives be achieved other than to prohibit advertisements or promotions of such tobacco products?"