BIG WIN FOR PUBLIC HEALTH

Tobacco firms lose as court upholds tough controls

Manufacturers and dealers will pay new tax of two per cent of the value of tobacco products

In Summary

•Supreme Court finds regulations conform to the Constitution whose main goal is to protect health and lives of Kenyans

•Regulations, published by Health CS in 2014, provides for large gory images and text warnings on all tobacco products

Christine Sitati of KENCO, KETCA chairman Joel Gitali and coordinator Thomas Lindi in Nairobi on Tuesday, November 26, 2019
WELCOME RULING: Christine Sitati of KENCO, KETCA chairman Joel Gitali and coordinator Thomas Lindi in Nairobi on Tuesday, November 26, 2019
Image: KELVIN MUTINDA

The Supreme Court has dismissed a long-running case in which cigarette manufacturer British American Tobacco had challenged the Tobacco Control Regulations 2014 on lack of merit.

While upholding the regulations yesterday, Justice Njoki Ndung'u ruled that the regulations conform to the Constitution whose main goal is to protect health and lives of Kenyans.

The highest court dismissed the appeal on grounds that there was no violation of rights at all by the action of the ministry.

 
 

The case has dragged in court for four years, since  BAT sued the Ministry of Health at the High Court early 2015 claiming the regulations were unconstitutional.

 

The regulations, published by the  Cabinet Secretary for Health in December 2014, provide for large gory images and large text health warnings on all cigarette packets and tobacco products.

They also make it mandatory for manufacturers to disclosure the ingredients of their tobacco products.

Manufacturers and all tobacco dealers will pay a new tax of two per cent of the value of tobacco products manufactured or imported by the manufacturer or dealer in a financial year.

The tax, called a solatium compensation contribution, is common around the world and will fund the treatment of people sickened by tobacco.

It will also fund tobacco control research, cessation and rehabilitation programmes.

BAT and Mastermind Tobacco had asked the Supreme Court to throw out the regulations arguing that they were introduced arbitrarily without proper public participation and stakeholder consultations, arguments the judges dismissed yesterday.

 
 

The Supreme Court also disagreed with the firms that the requirement to disclose tobacco product ingredients would restrict their commercial interests.

 

Through their lawyers, the companies said there was a failure to develop a regulatory impact assessment to address issues arising out of the enforcement of the regulations.

The company said they were also aggrieved with the provisions limiting interactions between public officials and the tobacco industry, which they termed as discriminatory and a violation of their constitutional rights.

The Ministry of Health and tobacco control advocates yesterday celebrated the ruling and urged the industry against interfering with implementation. 

"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," said Joel Gitali, chairman of the Tobacco Control Alliance, who were enlisted as an interested party in the case. 

Gitali quoted World Health Organisation and ministry statistics showing 30,000 Kenyans are killed by tobacco use every year.

"It is now clear that cigarette manufacturers must now print clear graphical warnings on their products, admitting that the continued use of these products leads to disability, diseases and death," he said.

The ministry says Kenya has 2.5 million adults who are regular tobacco users.

The ministry further says tobacco use is among the top five leading behavioural causes of cancer, and is responsible for about a third of cancer deaths globally.

"Data from the Kenya National Bureau of Statistics shows that one in 11 deaths in Kenya was caused by cancer in 2017, making it the third deadliest disease after malaria and pneumonia," he said.

Head of the Kenya Network of Cancer Organisations Christine Sitati noted that tobacco was a major cause of the cancers of the mouth and throat, liver, pancreas, oesophagus, stomach, colon, rectum, larynx (voice box), trachea, bronchus, urinary bladder,cervix, kidney and renal pelvis, as well as acute myeloid leukemia.

"The regulation Number 37 that requires manufacturers to pay the solatium compensatory contribution at two per cent is most welcome. This fund can be ploughed into health programs to clear the mess created by tobacco use," she noted.