High Court Suspends New Tobacco Packaging Regulations: Ruling in British American Tobacco Kenya Ltd v. Cabinet Secretary for Health & 2 Ors

British American Tobacco Kenya

Previously, this blogger discussed here the Tobacco Control Regulations 2014 made by the Cabinet Secretary for Health published under Legal Notice No. 169 of 2014 in the Kenya Gazette Supplement 161, Legislative Supplement No. 156 of 2014 and scheduled to take effect on 1st June 2015. In a recent development, the High Court has delivered a ruling in the case of British American Tobacco Kenya Ltd v Cabinet Secretary for the Ministry of Health & 2 others [2015] eKLR ordering that the implementation of these Regulations be temporarily suspended.

British American Tobacco (BAT), the Petitioner, moved the Constitutional and Human Rights Division of the High Court under certificate of urgency for various conservatory orders staying the coming into force and implementation and/or operation of the Tobacco Control Regulations 2014. Among BAT’s list of grounds for seeking the conservatory orders, there was a claim that the implementation of certain requirements in the Regulations would result in an infringement of intellectual property (IP) rights held by BAT.

According to BAT, the implementation of the Regulations would result in an infringement of BAT’s IP rights in at least two different ways. Firstly, the provisions under Part III of the Regulations which require tobacco manufacturers to disclose information that are IP protected. Secondly, the pictorial health warnings set out under Part III of the Regulations are wide, vague and disproportionate and constitute an unnecessary and unjustifiable limitation or a threat to BAT’s right to benefit from its trade marks.

In a terse reply by the Cabinet Secretary, it was argued that the Regulations had not yet come into force therefore BAT’s application should be dismissed as it is merely an academic exercise and at most premature. Further, the Cabinet Secretary argued that BAT had not demonstrated a prima facie case based on a real danger of violation of its rights which is imminent, true and factual.

However, the court found in favour of BAT and stated as follows:

“The present petition raises critical issues on the process of enactment of the Tobacco Control Regulations 2014, and on whether the constitutional and statutory process for enactment were complied with. It also raises the question whether, should the Regulations be enforced, there shall be violation of the petitioner’s rights, inter alia, under Articles 27 and 40 of the Constitution. (….) I am satisfied that the orders sought by the petitioner pending the hearing and determination of this petition are merited. I therefore grant the following orders:

i). That a conservatory order be and is hereby issued staying the coming into force and implementation of the Tobacco Control Regulations 2014, Legal Notice No 169 of 2014 published in the Kenya Gazette Supplement 161, Legislative supplement No 156 of 2014 pending the hearing and determination of this petition.

ii) That the costs of this application shall be in the cause.”

A copy of the ruling is available here.

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