Kenya confronts tobacco industry to protect public health

Kenya's Supreme Court has dismissed an appeal by British American Tobacco (BAT) Kenya against the country's tobacco control regulations.

Tobacco companies use legal action to counter health policies. With major financial resources, they initiate legal actions against laws or regulations in order to also dissuade neighboring countries from adopting such provisions. These actions fail. The courts of Kenya as well as Uganda have rejected all the tobacco companies' requests. The judges have recalled the preeminence of the defense of public health over the sectoral interests of the industry that justify restricting their activities. These decisions are also important for other countries facing similar threats of legal action from tobacco manufacturers.

The public authorities supported by the civil society organisations behind the measures contested by the manufacturers find themselves strengthened by these court decisions.

The appeal was filed in 2015 by BAT, which challenged the constitutionality of the Kenya Tobacco Control Regulations 2014. BAT lost in the High Court and then the Court of Appeal, and its appeal to the Supreme Court has now been dismissed. This decision allows the Kenyan government to finally implement regulations designed to protect health, including:

• illustrated health warnings on all tobacco packaging
• enhanced protections through smoking bans in public and collective places
• provisions to protect tobacco control policies from tobacco industry interference, and
• the creation of a tobacco control fund, into which BAT will be required to pay an annual fee to help pay for health costs related to tobacco use.

BAT is also being investigated in a legal proceeding, this time against it. The company is currently under investigation by the Serious Fraud Office in the UK and Kenya for alleged bribery of government officials in several African countries. In addition, another legal action is being considered in London by tobacco farming families in Malawi, concerning abusive labour practices and child labour.

The Global Tobacco Industry Interference Index, published in October 2019, found that Kenya's laws ranked the country fourth out of 33 countries in its ability to protect health policies from tobacco company interference. Countries are more successful in reducing tobacco use when they protect policies from tobacco industry influence.