British American Tobacco (BAT) fights State over new tough smoking rules

A cigarette burns in an open space. Cigarette maker British American Tobacco yesterday battled with the State over 2014 Tobacco regulations, citing unfairness and vagueness in that law. (PHOTO: COURTESY)

Cigarette maker British American Tobacco yesterday battled with the State over 2014 Tobacco regulations, citing unfairness and vagueness in that law.

BAT asked the Court of Appeal to allow its argument that the regulations ought not see the light of the day. On its part, the State told the court that there was nothing unconstitutional about the regulations, which among other things required gory https://cdn.standardmedia.co.ke/images displayed on cigarette packets.

BAT through its lawyers Kiragu Kimani and Walter Amoko argued that the tobacco control regulations had denied the tobacco industry players rights that are enjoyed by other companies in their daily businesses. Top on the company's grievances is that the restriction of smoking in public places is ambiguous as the definition of the same (public) is a place where people are gathered and have a right of access.

BAT argues that smokers be allowed to puff in the streets and on paths as the mere meaning of the two does not conclude that these are public places.

The argument presented before Court of Appeal Judges Fatuma Sichale, Hannah Okwengu and Festus Azangalala is that the 2014 Tobacco regulations were stretched beyond what had been mandated by the Constitution. BAT held that there was no need of confining those who take a puff in a smoke house.

Lawyer Kimani took the stand first and argued that although his clients deal with a substance that is a health hazard, the trade was allowed in the country and ought not to be clipped in an unfair manner.

He said BAT was not opposed to control but it ought to be within the law. "The powers to make regulations is conferred upon the first respondent (health Cabinet Secretary) but there is no other law that empowers the first respondent to make regulations such as the ones in this litigation," Kiragu said. "The effect of the regulations is to discriminate against the tobacco industry."

The cigarette maker also complained that a 2 per cent tax imposed on cigarettes was vague as the industry players were not told whether it would be imposed on the final product or on the raw material.

The implementation of the regulations that required tobacco firms to put graphic https://cdn.standardmedia.co.ke/images on cigarette packets also touched off a heated argument, with BAT saying the regulations were not done in consultation with the affected players.

BAT lawyers argued that only one meeting was held; the State did not get back to them regarding concerns that were raised by the industry players. "The issues raised by BAT would have doomed tobacco regulations. We have a right to have our concerns addressed," Amoko argued.

The Attorney General Githu Muigai on the other hand defended the rules, saying nothing was passed that  infringed on the Tobacco industry players.

Through lawyer Mohamed Adow, the AG said the regulations were meant to protect the public against Tobacco smoking-related diseases.

He said that if the regulations were set aside, it would mean that the courts were indirectly allowing Kenyans to die from, among other health issues, tobacco smoking fumes. "Inviting the court to nullify the regulations is to endorse disease, disability and death and amounts to subversion of the will and the wishes of the people of Kenya," Adow submitted.