On 17 February 2017, the Court of Appeal of Kenya at Nairobi upheld the High Court of Kenya’s dismissal of a legal challenge brought by British American Tobacco (BAT) to the Tobacco Control Regulations (2014), made under the Tobacco Control Act (2007).
BAT had brought a legal challenge to the Tobacco Control Regulations (2014). These 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 verandahs; limitation of interactions between the tobacco industry and public officials; and requirements that tobacco companies pay a solatium compensation contribution (i.e. compensation for harm suffered) of 2% of the value of tobacco products manufactured or imported to fund tobacco control research and tobacco cessation and rehabilitation programs.
BAT challenged the regulations on a variety of grounds. In March 2016, at first instance, Mumbi J of the High Court of Kenya rejected almost all of BAT’s grounds of challenge and upheld the legislation, although she struck down a provision requiring tobacco manufacturers to disclose their market share on the grounds that this would require them to know the sales figures of other companies, and reduced the maximum penalty for smoking in public places to that provided for in the Tobacco Control Act.
BAT appealed the judgment to the Court of Appeal. On appeal, BAT challenged the legislation on the grounds that:
- the government had not provided for adequate public participation in the passing of the regulations
- the government had not prepared a regulatory impact statement in developing the regulations
- provisions limiting interactions between public officials and the tobacco industry were discriminatory and violated its constitutional rights to peaceful assembly and fair administrative action
- the solatium compensation contribution was an unconstitutional tax and an attempt to ‘irregularly apply the World Health Organization Framework Convention on Tobacco Control’
- there was inadequate basis in the legislation for extending the smoke-free ban to outdoor areas adjacent to public places
- the product and revenue disclosure requirements violated its constitutional rights to privacy and its intellectual property rights.
The Court of Appeal’s decision upholds the High Court’s judgment in its entirety, rejecting all grounds of challenge by BAT. It found that:
- BAT had had the opportunity to attend, and had in fact attended, public consultations on the regulations, and had made submissions to the government on the regulations. The right to public participation did not mean the petitioner had a right for its views to ‘carry the day’.
- There was no need to prepare a regulatory impact statement because the regulations fell within an exception in the Statutory Instruments Act for regulations that are substantially uniform or complementary to an Act. The regulations were complementary to the Tobacco Act because they helped to achieve its object of regulating tobacco manufacture and use to protect tobacco users and the general public.
- Limiting interactions between the tobacco industry and public authorities was not discriminatory, nor did it violate the right to peaceful assembly or fair administrative action.
- The constitution only prevented arbitrary discrimination, and did not prevent distinctions based on legitimate public policy grounds. The concept of discrimination needed to take into account that the tobacco industry ‘cannot be compared to manufacturers of other products’; the ‘tobacco industry cannot expect equal treatment with other industries as due to the harmful effect of tobacco products [and] the State … obligation to protect the health of its citizens’. As the regulation’s singling out of the tobacco industry was justified, and it applied equally within the tobacco industry, it was not discriminatory.
- There was no infringement of the right to peaceful assembly: the regulation did not bar all interactions between the tobacco industry and public officers but merely limited them in a way to ensure accountability and transparency, informed by the need to control and regulate the tobacco industry for public health reasons.
- There was no infringement of the right to fair administrative action because the government had acted consistently with procedural requirements set out in the Statutory Instrument Act and the Constitution.
- The solatium compensatory contribution was not a tax, because its proceeds did not go toward public revenue but to compensating the negative effects of tobacco product use. It was consistent with the law and with the state’s obligations to ensure the enjoyment of the highest attainable standard of health. It was also not an attempt to ‘irregularly apply the [WHO FCTC]’. The Court emphasised that Kenya had ratified the WHO FCTC and therefore committed to ‘protect its present and future generations from the devastating social and environmental consequences of tobacco consumption and exposure to tobacco smoke’, and that under Article 2.6 of the Constitution treaties ratified by the state were part of the law of Kenya.
- The ban on smoking in indoor public places and on streets, walkways, and verandas adjacent to public places was supported by the Tobacco Control Act – the provisions providing for smoke-free areas in indoor public places needed to be read together with provisions providing for a right to a clean and healthy environment and protection from exposure to tobacco smoke, and with provisions providing for obligations to effectively protect other individuals, including children, from second-hand smoke.
- Any limitation on intellectual property rights resulting from the product disclosure requirements was justified on public health grounds. The court cited a passage from the High Court of England and Wales in the challenge to UK plain packaging that recognised that intellectual property rights were not absolute and could be derogated from on public health grounds.
The court concluded that there was no error in the High Court of Kenya’s decision, and dismissed the appeal.
The High Court and Court of Appeal’s decisions are particularly important because they consider a legal challenge to a measure implementing article 5.3 of the WHO FCTC (protection of public health policies with respect to tobacco control from commercial and other vested interests of the tobacco industry). They affirm that limiting interactions between public officials and the tobacco industry does not unjustifiably ‘discriminate’ against the tobacco industry or affect its procedural rights. They also affirm that the right to public participation and consultation does not prevent states from adopting strong safeguards against tobacco industry interference. They therefore provide a useful illustration of the relevant legal arguments for other WHO FCTC parties looking to strengthen implementation of article 5.3, as urged by the Conference of the Parties at its most recent session.
BAT is currently pursuing an appeal before the Supreme Court of Kenya, which is Kenya’s court of final appeal.