TOBACCO CONTROL LAWS

Republic of Kenya v. Director of Medical Services Ex-Parte BAT Kenya Ltd.

British American Tobacco Kenya Limited ("BAT Kenya") challenged an order issued by the Director of Medical Services ordering BAT Kenya to stop selling Dunhill Switch and any other cigarette packs with the phrases "Crush the Capsule," "Switch the experience," "Refresh the taste," "Switch," and "Refreshing twist" on the grounds that these phrases constituted a promotional campaign in violation of the Tobacco Control Act. BAT Kenya objected to the order on jurisdictional grounds and also defended its packaging as non-promotional, arguing instead that it gave adult consumers instructions on how to use the product. The court did not examine the merits of the Director's decision, instead focusing on whether the Director followed fair procedure in taking its administrative action. The court concluded that the action was not undertaken fairly because BAT Kenya was not provided with an opportunity to respond or submit its view before the decision was made. As a result, the court quashed the Director's order and prohibited the Director from demanding that Dunhill Switch be removed from the market unless and until BAT Kenya was given a proper hearing on the issue.

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Republic of Kenya v. Director of Medical Services Ex-Parte BAT Kenya Ltd., Application No. 38 of 2015, High Court of Kenya (2016).

  • Kenya
  • May 17, 2016
  • High Court of Kenya at Nairobi

Parties

Plaintiff British American Tobacco Kenya Limited

Defendant Director of Medical Services

Legislation Cited

Tobacco Control Act, 2007

Constitution of Kenya

International/Regional Instruments Cited

WHO Framework Convention on Tobacco Control (WHO FCTC)
WHO FCTC Article 5.3 Guidelines

Related Documents

Order of Certiorari, Stay

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

Packaging and Labeling Measures
Measures to regulate the marketing on tobacco packages. This includes both bans on false, misleading, deceptive packaging, as well as required health warnings on packaging. (See FCTC Art. 11)
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 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.
Right to Procedural Due Process
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
Tobacco Control Law Violation
A claim of a violation of a tobacco control law or statute.
Procedural Defect
The court might consider procedural matters without touching the merits of the case. These might include: improper joinder, when third parties, such as Health NGOs or government officials, seek to become parties to the suit; lack of standing, where a plaintiff fails to meet the minimum requirements to bring suit; lack of personal jurisdiction, where the court does not have jurisdiction to rule over the defendant; or lack of subject matter jurisdiction, where the court does not have jurisdiction over the issue at suit.

Type of Tobacco Product

None

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