TOBACCO CONTROL LAWS

British American Tobacco South Africa (PTY) Ltd. v. Minister of Health

British American Tobacco South Africa Limited (BAT) sued the Minister of Health and others claiming that the Tobacco Products Control Act was unconstitutional.  BAT claimed that the Act, which prohibits the advertising or promotion of tobacco products, violated their freedom of expression by denying them the ability to communicate one-to-one with adult consumers and violating the right of consumers to receive information concerning tobacco products.  BAT lost at the trial court and appealed.  To determine if the limitation on speech was justified, the Appeals Court balanced the right of smokers to receive information concerning tobacco products against the government’s obligation to take steps to protect its citizens from the dangers of tobacco.  The Court found that the hazards of smoking far outweigh the interests of the smokers as a group, so the limitation was justified.  Further, the Court stated that South Africa is a Party to the Framework Convention on Tobacco Control, and is obliged to have regard for the requirements of that treaty, specifically Article 13, which requires that Parties ban all tobacco advertising, promotion, and sponsorship. For these reasons, the lower court’s decision was affirmed. 

BAT appealed to the Constitutional Court.  The Court dismissed the appeal because the company had no prospects of success.

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British American Tobacco South Africa (PTY) Limited vs. Minister of Health, et al., Case CCT 65/12, Constitutional Court of South Africa (2012).

  • South Africa
  • Aug 6, 2012
  • Constitutional Court of South Africa
View Case History

Parties

Plaintiff British American Tobacco South Africa (PTY) Limited

Defendant

  • Minister of Health
  • National Council Against Smoking

Legislation Cited

Tobacco Products Control Act 83 of 1993 (as amended)

Related Documents

None

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.

Tobacco Control Topics

Advertising, Promotion and Sponsorship
Measures restricting any form of direct or indirect tobacco advertising, promotion and sponsorship. (See FCTC Art. 13)

Substantive Issues

Right to Freedom of Expression
A violation of the right to expression, free speech or similar right to express oneself without limitation or censorship. The industry may claim that a regulation infringes on their right to communicate with customers and the public. Similarly, they may claim that mandated warnings infringe on their freedom to communicate as they desire.
Right to Access to Information
A violation of the public’s right to information. The tobacco industry may claim that advertising, promotion or sponsorship, or packaging regulations limit the industry’s ability to communicate information to their customers and therefore infringes on the customer’s right to receive information, and to distinguish one product from another. Alternatively, public health advocates may claim that tobacco industry misinformation violates their right to accurate information or that government must be transparent in its dealings with the tobacco industry.
Tobacco Control Law Violation
A claim of a violation of a tobacco control law or statute.

Type of Tobacco Product

None

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