Republic of Kenya v. Director of Medical Services Ex-Parte BAT Kenya Ltd.
British American Tobacco Kenya Limited ("BAT Kenya") challenged an order issued by the Director of Medical Services ordering BAT Kenya to stop selling Dunhill Switch and any other cigarette packs with the phrases "Crush the Capsule," "Switch the experience," "Refresh the taste," "Switch," and "Refreshing twist" on the grounds that these phrases constituted a promotional campaign in violation of the Tobacco Control Act. BAT Kenya objected to the order on jurisdictional grounds and also defended its packaging as non-promotional, arguing instead that it gave adult consumers instructions on how to use the product. The court did not examine the merits of the Director's decision, instead focusing on whether the Director followed fair procedure in taking its administrative action. The court concluded that the action was not undertaken fairly because BAT Kenya was not provided with an opportunity to respond or submit its view before the decision was made. As a result, the court quashed the Director's order and prohibited the Director from demanding that Dunhill Switch be removed from the market unless and until BAT Kenya was given a proper hearing on the issue.
Republic of Kenya v. Director of Medical Services Ex-Parte BAT Kenya Ltd., Application No. 38 of 2015, High Court of Kenya (2016).
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 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 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.
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.
Type of Tobacco Product
None
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"However, it is clear that by the time the Respondent had a meeting with the Applicant, a decision had already been made and the time for compliance was running. From the contents of the letter it is clear that by the time the said meeting was held, the Respondent had to all intents and purposes not only made findings but even arrived at its recommendations which were to be implemented by the Applicant. In my view a process by which an administrative body makes findings and proceeds to make recommendations before affording persons affected thereby cannot by any stretch of imagination be termed as fair in order to meet the provisions of Article 50 of the Constitution. For a hearing to be said to be fair not only should the case that the respondent is called upon to be meet be sufficiently brought home to him and adequate or reasonable notice to enable him deal with it given but also the authority concerned ought to approach the issue with an unbiased disposition. In other words the authority ought not to be seen to be seeking representations from the respondent simply for the purposes of meeting the legal criteria. The fair hearing must be meaningful for it to meet the constitutional threshold."
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 Limited ("BAT Kenya") challenged an order issued by the Director of Medical Services ordering BAT Kenya to stop selling Dunhill Switch and any other cigarette packs with the phrases "Crush the Capsule," "Switch the experience," "Refresh the taste," "Switch," and "Refreshing twist" on the grounds that these phrases constituted a promotional campaign in violation of the Tobacco Control Act. BAT Kenya objected to the order on jurisdictional grounds and also defended its packaging as non-promotional, arguing instead that it gave adult consumers instructions on how to use the product. The court did not examine the merits of the Director's decision, instead focusing on whether the Director followed fair procedure in taking its administrative action. The court concluded that the action was not undertaken fairly because BAT Kenya was not provided with an opportunity to respond or submit its view before the decision was made. As a result, the court quashed the Director's order and prohibited the Director from demanding that Dunhill Switch be removed from the market unless and until BAT Kenya was given a proper hearing on the issue.