Regulations challenged

    Two cigarette manufacturing firms have asked Kenya’s Supreme Court to throw out the country’s Tobacco Control Regulations of 2014, arguing that they were introduced arbitrarily, according to a story in The Nation.
    British American Tobacco and Mastermind Tobacco Kenya reportedly told five Supreme Court judges in Nairobi that the regulations, enacted to regulate the production and consumption of tobacco and its products, were developed to restrict their commercial interests.
    BAT filed the case to challenge the Court of Appeal’s dismissal of its plea against High Court Judge Mumbi Ngugi’s decision to disallow its petition challenging the regulations.
    Through its lawyers, BAT argued that the regulations were created without proper public participation and stakeholder consultations.
    The company asked the Supreme Court to rule that the ‘failure to conduct proper consultations rendered the entire regulations unconstitutional’.
    BAT said it was aggrieved with the provisions limiting interactions between public officials and the tobacco industry, which it termed as discriminatory and a violation of its constitutional rights.
    Lawyers for the company asked the Supreme Court judges to find also unconstitutional regulations that required it and other tobacco product manufactures to contribute two percent of their revenues to a consolidated fund.
    They said the levy was a form of forceful taxation imposed on their client and other cigarette and tobacco product manufacturers, and that it was derived from draconian Scottish, Roman and Dutch laws, and not English common laws.
    The regulations extended non-smoking zones to outdoor areas adjacent to public places, including streets, verandas and any others defined by the Health Cabinet Secretary.
    The rules, the lawyers added, violated constitutional rights to privacy, and intellectual property rights by requiring companies to reveal the contents of their products and their revenue.
    But Senior State Counsel Mohamed Adow opposed the appeal, saying the firms were protecting their commercial interests without regard to public safety and the health of millions of Kenyans.
    The judges have yet to indicate the date on which they will make their ruling public.