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BAT loses Supreme Court battle on tobacco products sale, adverts

BAT offices
BAT offices in Nairobi. FILE PHOTO | NMG 

Laws governing the sale and advertising of tobacco products as well payment for damages caused by cigarettes will remain in place after the Supreme Court declared them constitutional.

While dismissing a petition by the British American Tobacco Company challenging the implementation of the Tobacco Control Regulations, the top court Wednesday upheld the lower court’s decisions to throw away concerns from the multinational cigratte manufacturer.

“There is no way that regulations can be made without considering the health of the people. It is like an ostrich burying its head in the sand. The issues of tobacco health and its impact to health is now a debate worldwide,” said Lady Justice Njoki Ndungu.

The disputed regulations require cigarette manufacturers to include 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, as well as limit interactions between the tobacco industry and public officials.

The law also requires tobacco companies to pay damages for harm suffered known as solatium compensation contribution of two percent of the value of the products manufactured or imported to fund tobacco control research, cessation and rehabilitation programmes.

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BAT had challenged the manner in which the law came into force while citing lack of sufficient public participation as well as discrimination.

But the Supreme Court has ruled that neither was there discrimination nor unconstitutionality when the disputed regulations were made as well as came into force.

With regards to the argument on intellectual property, the top court ruled that the right of BAT as against that of health was appropriately determined by the Court of Appeal on its proportionality.

“It is not enough for BAT to say that the limitation is not justifiable, the limitation has to be weighed against the larger society,” the judges said.

BAT together with Mastermind Tobacco Kenya initiated the legal battle against tobacco regulations four years ago.

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