Previously, this blogger reported here that the High Court had suspended the coming into force of the Tobacco Control Regulations 2014 made by the Cabinet Secretary for Health scheduled to take effect on 1st June 2015. Recently in the case of British American Tobacco Kenya Ltd v Cabinet Secretary for the Ministry of Health & 4 others  eKLR, Lady Justice Mumbi Ngugi (known to many readers for her landmark decision on anti-counterfeit law and access to medicines here) delivered a judgment at the High Court dismissing claims by ‘Big Tobacco’ that their constitutional rights including intellectual property (IP) rights are being violated by the new Tobacco Regulations.
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  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.
This blogger has come across Legal Notice No. 169 dated December 5, 2014 which states that the Cabinet Secretary for Health (pictured above), in exercise of the powers conferred by section 53 of the Tobacco Control Act, 2007 has made the Tobacco Control Regulations, 2014 which will come into operation six months from December 5, 2014. A copy of the Legal Notice and the Regulations are available here and here respectively.
Section 8 of the Regulations, whose short title reads: “prohibition on certain product descriptions”, is noteworthy and states as follows:
“8. A person shall not manufacture, sell, distribute, or import a tobacco product, for sale in Kenya, whose package carries a name, brand name, text, trademark or pictorial or any other representation or sign which suggests that the tobacco product is less harmful to health than other tobacco products.”
This section must be read with other sections in Part II of the Regulations on “Packaging and Labeling”:
3. (1) A person who manufactures, sells, distributes or imports a tobacco product shall ensure that every package containing the tobacco product bears warning labels and information required under section 21 of the Act and specified in the Schedule to the Act and the corresponding pictures and pictograms set out in First Schedule.
4. (1) No person shall manufacture, sell, distribute, or import a tobacco product, device or any other thing that is intended to be used to cover, obscure, mask, alter, or otherwise detract from the display of specified health warnings and messages including pictures and pictograms under the Act or these Regulations.
5. Where the health warnings and messages including pictograms that are required to be printed on packages are likely to be obscwed or obliterated by a wrapper on the package, the manufacturer, seller disfibutor or importer of the tobacco product shall ensure that the health warnings and messages shall be printed on both the wrapper and the packet.
6. (1) The manufacturer, seller, distibutor or importer of a tobacco product shall ensure that the specified health warnings and messages including pictograms required under these Regulations are rotated in accordance with section 21 (3) of the Act.
7. (1) The health messages required under these Regulations on all packages shall be in the form of a text message specified in the Schedule to the Act and a prescribed pictorial message set out First Schedule.
The Regulations appear to be made in compliance with the World Health Organisation Framework Convention on Tobacco Control (WHO FCTC) reaffirms the right of all people to the highest standard of health and represents a paradigm shift in developing a regulatory strategy to address addictive substances.
The Convention itself does not deal with intellectual property associated with tobacco packaging, particularly trademarks. Of relevance for this discussion is Article 11, which requires of countries to adopt effective measures to ensure:
(i) that tobacco product packaging and labelling do not promote a tobacco product by any means that are false, misleading, deceptive or likely to create an erroneous impression about its characteristics, health effects, hazards or emissions; and
(ii) that any outside packaging and labelling should carry health warnings that should be 50 per cent or more of the principal display areas.
And then there are Guidelines. These provide that countries “should consider adopting measures to restrict or prohibit the use of logos, colours, brand images or promotional information on packaging other than brand names and product names displayed in a standard colour and font style.”
In this connection, the First Schedule of Kenya’s new Tobacco Regulations contains a “list of prescribed health warnings and messages including corresponding pictograms” which must be displayed on every package. These include the following:
To the relief of Big Tobacco, Kenya seems to have decided against requiring plain packaging: black and white or two other contrasting colours; nothing other than a brand name, a product name and/or manufacturer’s name; and no logos.
Be it as it may, this blogger submits that these Regulations will have the drastic impact of removing the last space for tobacco advertising (i.e. the packaging), reducing the incidence of smoking and thus diminishing the industry’s power to recruit new smokers. Readers of this blog will recall our previous article here on the constitutional and intellectual property arguments around tobacco plain packaging.