Blow to BAT as court upholds tobacco rules

Wednesday, November 27th, 2019 00:00 |
Kenya Tobacco Control chairman Alliance Joel Gitali at a press conference in Nairobi, yesterday. Photo/PD/GERALD ITHANA

Manufacturers of tobacco and its products will have to pay two per cent of annual revenues from tobacco products locally manufactured or imported, the Supreme Court of Kenya has ruled.

The amount will be used to fund compensation for harm tobacco causes, for tobacco control research, cessation and for rehabilitation programmes.

British American Tobacco (BAT) Kenya had taken to top court a legal challenge to the Tobacco Control Regulations (2014) after Court of Appeal in 2017 upheld a 2016 High Court ruling that Tobacco Control Regulations were constitutional. 

In her ruling, Justice Njoki Ndung’u said there is no way the regulations could have been made without considering people’s health. “It is like an ostrich burying its head in the sand.

The issues of tobacco and its impact on health is now a debate across the world,” she said. 

The regulations provide for large graphic and text health warnings; mandatory disclosures of tobacco product ingredients and revenues; smoke-free environments in public places and adjacent streets, walkways and verandas; limitation of interactions between the tobacco industry and public officials, among others.

No contradiction

BAT Kenya in 2015 field a suit against these regulations on the basis they were “oppressive, irrational and unreasonable”. However, Justice Ndung’u said the Court of Appeal upheld the High Court ruling, which stated:  “The regulations are constitutional and do not contradict the Tobacco Control Act as had been argued in suit papers by BAT.” 

They also said the solatium is not a general tax, and therefore, consistent with the law. 

The regulations were due to come into effect immediately, but in 2017, BAT re-launched the case at the Supreme Court, and the Court of Appeal’s ruling was stayed.

Civil society organisations welcomed the yesterday’s ruling, Joel Gitali representing the organisations, saying:  “On behalf of civil society organisations supporting tobacco control and public health, we thank the Supreme Court for upholding the regulations, confirming they conform to the Kenyan Constitution, whose main goal is also to protect the health and lives of Kenyans.”

He said since 2007, when the Tobacco Control Act was enacted, every attempt by the government to implement and enforce the law to protect Kenyans, had been opposed or blocked by the tobacco industry.

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