BY THOMAS KARIUKI
The high court has overturned a government directive requiring cigarette manufacturers to submit a report outlining their market share.
It however upheld all other regulations made by the ministry of health controlling the use of cigarettes in the country.
Justice Mumbi Ngugi said “while I find that the rest of the information required from the petitioner and other entities in the tobacco industry is reasonable, the requirement that they supply information relating to their market share is unreasonable, and they are under no obligation to comply with it.”
British American Tobacco BAT went to court contesting the manner of formulation and enactment of the regulations terming them unconstitutional and unprocedural.
BAT wanted the regulations reversed and their enactment started afresh so as to address the concerns that they had raised.
In a ruling dated June 4 2015, the Court issued interim orders restraining the implementation of the regulations pending hearing and determination of the petition.
Kenya’s leading cigarette manufacturer BAT said that the Regulations had a substantial direct and indirect effect on their business and that of other players in the tobacco industry.
The health ministry also introduced a solatium compensatory contribution meant to share the cost of handling tobacco consumption related diseases and other health complications caused by tobacco consumption and use.
Nevertheless, BAT said the contribution is unconstitutional and unlawful because the amount set was without any reference to a determination of a lawful obligation to pay compensation or as to the amount.
“That the said contribution is discriminatory as other industries, including those that deal in controlled substances, have not been subjected to similar measures,” they claimed.
They also said that the solatium compensatory contribution is primarily meant to punish tobacco manufacturers and importers for engaging in what is legal trade in the tobacco industry.
BAT also contested a directive requiring it have a pictorial warning on its cigarette packs.
They said, “the warning requirements under the Regulations are not necessary or proportional. The public, including youth, are already well informed of the risks of smoking. There is no evidence to show that the warnings are not seen and assimilated by consumers or that trademarks neutralise consumers’ existing awareness of the risks of smoking.”
The cigarette producers said that the real drivers of smoking initiation are factors such as personal influence, risk preferences, peer influence, socioeconomic factors, access and price, and that pictorial health warnings have not been shown to reduce smoking or significantly alter beliefs and intentions about smoking.
Another ministry proposal prohibiting smoking in streets, walkways and verandas adjacent to public places was also contested.
In his response, then Health CS James Macharia sets out the effects of tobacco usage in Kenya and asserted that the Regulations are intended to effectively implement the life-saving measures already contained in the Tobacco Control Act.
It was his averment that the regulations were enacted in order to address the negative effects of tobacco use which he said has impacted negatively on the lives of the people of Kenya, the economy and the environment.
He also dismissed a challenge that warning labels are not highly effective in reducing tobacco consumption.
He said “that research has established that large, graphic warning labels on tobacco products is an effective way to inform consumers about the harmful impact of tobacco, encourage users to quit and deter non-users from starting smoking.”
The CS also said that vulnerable groups such as low-literacy people, children, and minorities can understand images more than writings.
According to the WHO framework convention, CS Macharia said states parties should adopt effective national legislation and actively promote effective regulations that requires 100% smoke-free environments in all indoor public places, indoor workplaces on all means of public transport, and, as appropriate, other public places with no exceptions that provide for smoking zones.
The health minister also asserted that the disclosures are required as tobacco products contain over 400 harmful ingredients which need to be regulated, controlled and their quantity monitored.
Justice Mumbi Ngugi agreed with the CS saying that the effects of a product on the health rights of others cannot be divorced from the process and need for its regulation.
“it is my view that such requirements and disclosure outweigh the intellectual property rights pertaining to tobacco products,” she said.
Judge Ngugi said that the Tobacco Control Act has very clear objectives of safeguarding individuals and the public from the dangers posed by consumption of tobacco, which cause debilitation, disease, and death.
The Regulations impugned in this petition are intended to safeguard the public, those who smoke and those who do not, and to provide certain information with regard to the contents of tobacco products.
She also overturned a regulation 45 saying is ultra-vires section 24 (5) and regulation 1 with respect to the period within which the Regulations should come into force. The judge directed the regulations shall come into force within six months.