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This was a law suit by BAT against the Kenyan Government following the enactment of Tobacco Control Regulations.
BAT Kenya argued that:
1. The regulations were unconstitutional owing to the failure t carry out proper public participation as  was required in law.
Court determination:
That there was sufficient public participation and consultation in the formulation of the regulations and the process was therefore in accordance with constitutional requirements on public participation

2. BAT claimed that the regulations were an infringement of their  freedom of expression

3. Regulation 12 on disclosure requirements violated the BAT's constitutional right to intellectual property or privacy.
Government Response: Part III of the Regulations which provide for information disclosure, the 1st & 2nd Interested Parties submitted that the requirements do not violate the appellant’s Constitutional rights and nor were they uncertain or impossible to comply with; that Regulation 13 is clear as to the information required to be disclosed; that the requirements does not violate the right to property; that the disclosure of the makeup of tobacco products is justified under Article 46(1)(c) of the Constitution; and that even if the disclosure had the effect of infringing the appellant’s rights such rights are not absolute but are subject to higher ideals.
Court Ruling:  No violation of the petitioner’s rights by the regulations has been demonstrated.

4. Regulations 22-32 were discriminatory as they imposed restrictions on the tobacco industry alone and also curtailed the tobacco industry’s right to fair administrative action provided under the Constitution
Court Determination: Article 27 of the Constitution that guarantees the right to equality and freedom from discrimination. This is because the limitation imposed by these Regulations target only those in the tobacco industry. In her judgment the learned judge found that the differential treatment between the tobacco industry and other industries was permissible under Article 24 of the Constitution that allows limitation of rights where such limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom and taking into account all relevant factors.

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British American Tobacco Kenya Ltd. v. Ministry of Health [High Court - Kenya] [March 24, 2016]

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British American Tobacco Kenya Ltd. v. Ministry of Health [High Court - Kenya] [March 24, 2016]

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BAT cited;

Procedural violations;Limited and unsatisfactory engagement of stakeholders

Acting ultra-vires

Ambiguity

Discrimination

Unfair punishment of legal trade

undermining its right to fair administrative action ; offends the principles of good governance, including public participation, inclusiveness and non-discrimination

Violation of other statute

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Philip Morris Brands SARL,Philip Morris Ltd,British American Tobacco UK Ltd vs The Secretary of State for Health,Case C-547/14, Court of Justice of the European Union (2016).European Union May 4, 2016 Court of Justice of the European Union

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Philip Morris Brands SARL,Philip Morris Ltd,British American Tobacco UK Ltd vs The Secretary of State for Health,Case C-547/14, Court of Justice of the European Union (2016).European Union May 4, 2016 Court of Justice of the European Union

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1.  Philip Morris and British American brought a judicial review against the United Kingdom based on the government’s intention to implement the Tobacco Product Direct requirements in UK legislation Tobacco.

2. The tobacco companies claimed that parts of the Directive as a whole, were invalid because it was incompatible with the EU Treaties; was not proportionate or supported by evidence; was not sufficiently harmonizing in nature; and contravened the principle of subsidiarity.

3.  The request has been made in two sets of proceedings brought by (i) Philip Morris Brands SARL and Philip Morris Ltd (‘PMI’) and (ii) British American Tobacco UK Ltd (‘BAT’) against the Secretary of State for Health, concerning the legality of the ‘intention and/or obligation’ of the United Kingdom Government to implement Directive 2014/40

4. The court found that the packaging and labeling requirements were proportionate and did not go beyond what were necessary and appropriate.

5. In addition the court highlighted the importance of the FCTC as a tool for interpretation and stated that it could have a 'decisive influence' on the interpretation of both EU law and Member States' tobacco control legislation.

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BRITISH AMERICAN TOBACCO KENYA LTD v. CABINET SECRETARY FOR THE MINISTRY OF HEALTH & 4 OTHERS [2016]eKLR

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BRITISH AMERICAN TOBACCO KENYA LTD v. CABINET SECRETARY FOR THE MINISTRY OF HEALTH & 4 OTHERS [2016]eKLR

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The Petitioner challenged the constitutionality of the Tobacco  Control Regulations of 2014 on the grounds that:-

(i) The engagement of the tobacco industry as stakeholders in the process of developing the regulations was limited and entirely unsatisfactory contrary to section 5 (1) of the Statutory Instrument Act which requires the Regulatory Authority to consult with persons likely to be affected by proposed regulations likely to have a substantial direct or indirect impact upon businesses or restrict competition.

(ii) It will incur substantial and additional costs to comply with new labelling and packaging requirements under the regulations

(iii) The Cabinet Secretary of Health contravened s.6 of the Statutory Instruments Act by failing prepare and publish the Regulatory Impact Statement in the Kenya  Gazette or in any newspaper  despite the Regulations imposing a significant cost on it, the tobacco industry generally and the community.

(iv) Failure by the Cabinet Secretary of Health to grant the Petitioner access to Regulatory Impact Statement and information evidencing compliance with the requirements under the Statutory Instruments Act contravened her right to Access to Information as enshrined under Ar. 35 of the Constitution.

(v) Imposition of solatium compensatory contribution on the tobacco industry is unconstitutional and unlawful for:
(a) setting the amount payable without reference to a determination of a lawful obligation to pay compensation
(b) Failure to furnish reasons for the imposition of the levy or granting the Petitioner  an opportunity to review such reasons.
(c)being oppressive, irrational and unreasonable considering the tobacco manufacturers and importers are already subject to many taxes including excise duty which is set at a very high level.
(d)  primarily meant to punish tobacco manufacturers and importers for engaging in what is legal trade in the tobacco industry
(e) Being discriminatory as other industries, including those that deal in controlled substances, have not been subjected to similar measures.

(vi) Excessive Limitation of the tobacco industry's interaction with public officers undermines its right to fair administrative action and offends the principles of good governance, including public participation, inclusiveness and non-discrimination.

(vii) Packaging and Labelling Regulations prevents the Petitioner from using its trademarks consisting of logos, colours and other devices placed at certain positions on the package, including but not limited to position marks and entire marks

(viii) No evidence that trademarks neutralize consumers' existing awareness of the risks of smoking.

(ix) Pictorial Health Warnings have not been shown to reduce smoking or significantly alter beliefs and intentions about smoking.

(x) Prohibition of smoking in streets, walkways and verandas adjacent to public places is unconstitutional

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BAT Uganda Ltd v. Attorney General, et al. No. 46 of 2016, Constitutional Court of Uganda (2019).

1. That section 15(2) which instructs TI to place Graphic Health warnings on cigarette packs violates the right for every person in Uganda to practice his or her profession and carry on any lawful occupation, trade or business (Art. 40 (2) of the Constitution;
2. Violates Article 26 on protection from   deprivation of property;
3. Violates protection of freedom of conscience, expression, movement, religion, assembly and association in article 29 of the constitution;
4.   Despite increasingly strict tobacco control policies, many people choose to  smoke and it is important to ensure that the regulatory proposals in the TCA do not lead to unintended consequences that risk an untaxed and unrestrained illegitimate trade in tobacco products.
5.  That regulatory proposals achieve a fair  balance between promoting the public health objective of combating smoking, and the legitimate constitutional and economic interests of tobacco companies such as the Petitioner, who are dealing in a legal product (tobacco and tobacco products) and contribute to the Ugandan economy in many dimensions.
6.  The Petitioner notes that the 65% graphic health warning requirement is an increase on the previous standard of 30% prescribed by the Uganda National Bureau of Standards.
7.  That the graphic health warning to 65% has the effect of unreasonably restricting the space available to the Petitioner in its practice of a lawful trade, occupation and business, leaving your Petitioner only approximately one third of the pack to display its trademarks.
8.  The graphic health warning to 65% will deprive the Petitioner of some of its property rights, and will encumber the use of its trademarks on product packaging as protected under the Trademarks Act 2010, also impacting the goodwill associated with its brands.
9.  The Petitioner, as a commercial entity engaging in a lawful trade, is entitled to enjoy intellectual and other brand property rights
10.  The increment of the graphic health warning to 65% will also infringe on the  Petitioner's right of free speech, guaranteed by Article 29(1) (a) of the Constitution.
11.  The increment of the graphic health warning to 65% inhibits the ability of manufacturers to communicate with adult consumers in relation to a lawful product .
12.  That there is already universal awareness of the risks of smoking, there are already warnings  on the packs highlighting the risks of smoking and covering 30% of the pack, and evidence shows that graphic health warnings do not reduce tobacco consumption.
13.  That Uganda has assumed international obligations to violation of Uganda's obligations under  the World Trade Organization administered Trade Related Aspects of Intellectual Property Rights Agreement of 1994, the General Agreement on Tariffs and Trade 1994 and the Agreement on Technical Barriers to Trade 1995.
14.  That Article 5 of the FCTC, which sets out the general obligations of parties, also acknowledges that the implementation of legislative measures must be in accordance with 20 national laws and in "accordance with [Parties] capabilities", and Article 2.1 of the FCTC also confirms Parties' capabilities to comply with international laws in respect of the implementation of any measures that exceed a party's obligations under the FCTC.

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British American Tobacco South Africa (PYT) LTD v. Minister of Health

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British American Tobacco South Africa (PYT) LTD v. Minister of Health

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In this application, the Applicant (BAT), argued that:

·         the prohibition contained in section 3(1) (a) of the Tobacco Products Control Act 83 of 1993 ("the Act") as amended by the Tobacco Products Control Amendment Act 63 of 2008 the 2008 Amendment Act") read with the definitions of "advertise" and "promote" in the Act as amended by the 2008 Amendment Act, did not apply to one-to-one communications between tobacco manufacturers, importers, wholesalers and retailers on the one hand and consenting adult tobacco consumers on the other;

·          the prohibition contained in section 3(1) (a) of the Act (as amended by the 2008 Amendment Act) read with the definitions of "advertise" and ; promote" in the Act as amended by the 2008 Amendment Act, is inconsistent with  the Constitution and invalid to the extent that it applies to one-on-one communications between tobacco manufacturers, importers, wholesalers and retailers on the one hand and consenting adult tobacco consumers on the other;

The focus of the applicant was on an alleged breach of the Constitution in regard to freedom of expression

Focus of respondent was rebutting the argument that limiting one-to-one communications with consenting adult tobacco users, is unconstitutional. Rather than on the argument that freedom of expression can be limited in the pursuit  of compelling interests like public health

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Tobacco (investment) Limited, asking the court to strike their names from the $21 billion suit instituted by the Lagos State Government and Environmental Rights Action/Friends of the Earth, Nigeria (ERA/FoEN). In her ruling on the Notice of Preliminary Objection brought by the three tobacco companies Justice Adebiyi held that the companies are necessary parties to the suit and that their presence now be necessary to enable the court effectively and completely adjudicate on the suit filed by the Lagos state government with some non-governmental agencies.

The three companies had under Order 3 Rule 9 and Order 6 Rule 10 of the Lagos State [Civil Procedure] Rules 2004 and Section 98 and 99 of the Sheriffs and Civil Process Act. Cap 56, 2004, asked the court to strike their names as parties to the suit and that the court lacks the jurisdiction to entertain the suit.
https://www.vanguardngr.com/2009/11/21bn-tobacco-suit-court-dismisses-companies%e2%80%99-prayers-2/#:~:text=Tobacco%20(investment)%20Limited,entertain%20the%20suit.
Interestingly the case died a natural death and it was not concluded.