By Vincent Agoya
Stringent regulations the Ministry of Health introduced to control the manufacture, sale and advertising of Tobacco products are reasonable and are to remain in force, an appellate court in Nairobi has ruled.
British American Tobacco (BAT) had mounted a challenge against the regulations at the Court of Appeal being “aggrieved” by a ruling at the high court which had reaffirmed that the regulations were for the good of the public.
The regulations were published in a legal notice on September 5 2015 and seeks to control advertising, use and sponsorship among others and to “protect the health of individuals and the public.
They include the provision of relevant information including the composition of Tobbaco products of which the company contended would interfere with “trade secrets and Intellectual Property rights.”
BAT wanted the regulations quashed stating that they did not comply with the constitution.
The ministry on the other hand told court that “Tobacco use is one of the highest causes of death in Kenya as it causes diseases and even disabilities…”
“We find that the regulations do not contravene the constitution and the process leading to their formation was inclusive of public participation,” justice Jamila Mohammed said in a ruling she read on behalf of Judges Hannah Okwengu, Festus Azangalala and Fatuma Sichale .
The bench said the regulations did not violate “privacy or Intellectual Property rights.”
“The disclosure was aimed at identifying the products’ ingredients used by tobacco manufacturers to ensure that public health authorities have full information to protect public interest,” the Appellate bench ruled.
“The side-effects of second-hand smoke are well documented and it is evident that the purpose of this regulation is to protect those who do not smoke, particularly children, from inhalation of second-hand smoke,” the three-Judge bench said.
The judges said there was sufficient evidence that consultative meetings were held on March 18 and August 15 2014 in which key stakeholders including representatives of BAT “exchanged information.”
The control seeks among others to reign in labeling and sponsorship of Tobacco products.
“There is no reason at all to fault the learned judge…”justice Mohammed said as she upheld the adverse ruling her colleague Justice Mumbi Ngugi handed the company on March 26 last year.
Rules would affect profitability
BAT had hinged on the appeal stating that the high court ruling was an infringement on its right to privacy.
“There is need to balance the interest of the public against trade interests…health needs need to be balanced against IP rights,” the judge said.
The regulations will among other things govern advertising for tobacco products as well as the size of health warnings on cigarette packages.
“We take the view that the regulations are reasonable,” justice Mohammed added.
She said the Ministry of Health regulations are not unconstitutional as claimed and that justice Mumbi did not make wrong findings.
The implementation of the regulations requires Tobacco manufacturers to put graphic images on cigarette packets.
In the court case, BAT had raised objections to the laws, first faulting the rules on the grounds that they would affect their firm’s profitability, and further claiming the regulations were unclear.