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
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 the enjoyment of the highest attainable standard of health. Public health advocates may claim the public’s right to health is violated by weak tobacco control measures, industry tactics, or an organization’s or smokers’ actions.
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.
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.
"[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?"
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 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.