21 June 2012

South Africa: Big Tobacco's Challenge to Smoking Act Fails

Photo: stock.xchng
Cigarettes in an ashtray.

A court challenge by British American Tobacco (Batsa) on the advertising ban of its products in South Africa was dismissed by the Supreme Court of Appeal (SCA) yesterday.

The Supreme Court dismissed an appeal from Batsa against an earlier judgement by the North Gauteng High Court which ruled that a ban on tobacco advertising was constitutional.

"Batsa's plan to addict new generations of teenagers to nicotine suffered a bloody nose in the courts," said the National Council Against Smoking (NCAS). "This is a victory for the youth of South Africa."

In his judgement Justice Mthiyane ruled that given the enormous health risks, economic harms, and clear evidence that tobacco advertising increases tobacco sales the government had a responsibility to ban tobacco advertising.

"There can be no question that the government has a responsibility to protect its citizens from the ravages of tobacco," said Justice Mthiyane. "Prohibition on the advertising and promotion of tobacco is reasonable and justified".

Batsa's application that the court overrule Parliament by interpreting the Tobacco Products Control Act so as to allow it to continue to advertise tobacco on a one-to-one basis was also rejected. The court felt that this would allow a continuation of the very wrongs the Act was designed to fix.

Batsa argued that in terms of section 16 of the Constitution, the prohibition limits the company's right to engage in commercial expression and the right to freedom of expression of tobacco consumers.

They further argued that tobacco consumers were denied the right to receive information concerning tobacco products.

It sought a High Court order that the provision did not apply to one-on-one communication between tobacco manufacturers, importers, wholesalers and retailers, and consenting adult tobacco consumers.

Sale of tobacco products

Justice Farlam wrote that "all the communications which the appellant [BATSA] wishes to make are designed, in some way or other, to promote the sale of their products and thus maintain in place the mischief which the Act is designed to combat."

NCAS, which had joined government as a friend of the court, welcomes the decision. "A comprehensive ban on tobacco advertising is critical in protecting young people from the clutches of the industry," reads a NCAS statement.

"Tobacco advertising is designed to appeal to youth by portraying smoking as a cool, fun and pleasurable experience.

"The NCAS considers the freedom of teenagers to grow up healthily as more important than the freedom of the tobacco companies to advertise a deadly addiction."

Background to the case

Tobacco advertising was banned in 1999, through an amendment to the Tobacco Products Control Act of 1993 (the Act).

The cigarette companies seizing on an alleged loophole in the law switched their advertising budgets to social media and one-to-one advertising. It held "secret cigarette parties" and use techniques such as "viral" or "buzz" marketing to continue to promote cigarettes.

In 2008, Parliament again amended the Act to outlaw these marketing tactics.

In 2009 Batsa applied to the North Gauteng High Court to declare the amendments to the Act as unconstitutional or alternately to interpret the Act in a manner which would allow it to continue advertising on a one-to-one basis.

In May 2011, the High Court rejected Batsa's application and held the advertising ban to be constitutional.

BATSA then appealed against the High Court judgement in the Supreme Court of Appeal

In 2000, tobacco use caused 44 400 deaths in South Africa according to the Medical Research Council, this is equal to 8 to 9% of all deaths in the country.

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