In late November, the highest Court in the land, the Supreme Court of Kenya handed Tobacco manufacturers British-American Tobacco (BAT) and Mastermind Tobacco a ‘death’ sentence by upholding the Tobacco Control Act 2014.
The case which was not widely publicized but was only covered by a few media houses; namely Business Daily (NMG) and a few international media i.e Associated Press. By way of things, it appears New York Times has deleted their article on the same.
In their ruling, the Supreme Court delivered on 26th November 2019, want the laws effected without further delay.
What does the Tobacco Control Act, 2007 say?
Tobacco Control Act, 2007 is the principal law governing tobacco control in Kenya. This comprehensive law defines keys terms and covers topics including, but not limited to, restrictions on public smoking; tobacco advertising, promotion and sponsorship; and packaging and labelling of tobacco products.
Other topics addressed by the law include: public education and information campaigns; sales to minors; and enforcement of the law. The Tobacco Control Act, 2007 grants powers, including implementation and enforcement authority, to individuals appointed under the Public Health Act. The Traffic Act provides a definition of “public service vehicle,” incorporated by the Tobacco Control Act with regards to smoke-free provisions.
The Tobacco Control Regulations, 2014 require combined picture and text health warnings and further regulate other provisions under the Tobacco Control Act, 2007 including public smoking restrictions, tobacco product and tobacco industry disclosures, and an annual fee placed on tobacco product manufacturers and importers, which will contribute to a tobacco control fund. (via Tobacco Control Laws Organization)
In November, Mr Joel Gitali, the Chairman, Kenya Tobacco Control Alliance released a statement applauding the court’s decision.
“Today, the Supreme Court has ruled to stop this senseless killing of defenceless Kenyans. Since 2007, when the Tobacco Control Act was enacted, every attempt by the government to implement and enforce the law to protect the lives of Kenyans, has been opposed or blocked by the tobacco industry…We congratulate 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’, Mr Gitali said.
BAT Kenya in its response to the Supreme Court verdict stated through their Managing Director Beverley Spencer-Obatoyinbo: “We respect the Court’s judgment but are obviously disappointed. Our appeal raised important issues as to the nature and extent of public participation in the legislative process. Today’s ruling will have very serious implications for the checks and balances on Government policy and legislative formulation that go far beyond the tobacco industry. We remain concerned that some parts of the Regulations are unnecessarily onerous and present a risk of arbitrary enforcement and harassment against consumers and the tens of thousands of retailers and distributors in our supply chain. The introduction of the Solatium Compensatory Contribution will also place the local industry at a significant disadvantage relative to tobacco manufacturers based in other EAC partner states. In addition, the limitations on government-industry interactions pose a very real threat to the industry’s ability to work with government agencies on fundamental issues, such as the fight against illicit trade in cigarettes. An issue which is costing the Government at least Shs 2.5 billion annually in unpaid taxes”
Manufacturers of tobacco products will start contributing two per cent of the value of the tobacco products they manufacture or import in a given financial year to assist the State in dealing with the adverse effects of tobacco consumption.
The regulations made pursuant to Section 53 of the Tobacco Control Act, 2007 seek to regulate various aspects of the tobacco sector in Kenya relating to the manufacture, sale and advertising of tobacco products.
The regulations were supposed to come into force on June 5, 2015, but one of the major players – British American Tobacco Kenya Ltd (BAT) – contested and the court on June 4, a day before enforcement, granted interim orders to restrain the implementation pending hearing and determination of the petition.
The government plans to set up a board to manage the Tobacco Control Fund, this is according to the Director of Public Health Kepha Ombacho.
“The funds will be used to support and improve health programmes which are addressing issues of public health education, non-communicable diseases, as well as support publication of communication materials,” said Dr Ombacho.
This will greatly contribute to the Universal Health Coverage (UHC), which is a key component of the government’s ‘Big Four agenda’, for development.
Regarding the disclosure of information about their products and which the tobacco industry players claimed was aimed at depriving them on their intellectual property rights, the court said the requirements are aimed at identifying the products and ingredients used by the manufacturers of tobacco products, ensuring that public health authorities have full information about the ingredients and the health effects.
“We find that the Court of Appeal correctly applied the test of proportionality in resolving the friction between the competing rights of BAT to its intellectual property vis-à-vis the need to ensure a safe and clean environment, free from the hazards of tobacco use, for the public,” ruled Supreme Court judges on November 26, 2019.
Court of Appeal judges Hannah Okwengu, Festus Azangalala and Fatuma Sichale had on March 24, 2016, upheld the regulations, saying their implementation does not violate the Constitution and that the two per cent was not a tax that required to be passed by Parliament for it to be lawful.
The courts separately held that the Tobacco Control Act has very clear objectives of safeguarding the public from the dangers posed by the consumption of tobacco.
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