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Previously, a case agaisnt TI companies has been instituted. Following several consumer complaints, the Advertising Standards Authority (ASA) evaluated a series of billboard, press, and radio ads from British American Tobacco (BAT) South Africa that warned of the dangers of buying illegal cigarettes. For example, one ad showed a woman being hijacked with the words “Danger: people who buy illegal cigarettes possibly help hijackers and robbers.” The ASA found that the ads had violated the country’s Code of Advertising Practice because (1) they were misleading (based on an unproven linkage between illegal cigarettes and violent crime) and (2) they were likely to cause unjustified fear and distress to viewers. BAT was ordered to withdraw the advertising campaign and not to use the ads in the current form again.

However, the following can also be instituted-

1. Health care costs recovery litigation - S.A government can institute a health costs recovery case. Data on economic and health costs of tobacco is available.

2. Legal action against government for failure to fulfill its FCTC obligations. Courts in S.A have been successful in holding the state accountable for failure to realise socio-economic rights. For instance mandating the provision of medicicine (nevaripine) for prevention of mother to child transmission of HIV; Ordering provision of ARV drugs and for basic shelter. Similarly, the government can be mandated to implement FCTC compliant policies.

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Considered Case of Guatemala.
Guatemala claims that it failed to regulate the use of tobacco products by its citizens adequately because of the tobacco industry's continued misrepresentations and anticompetitive behavior regarding the health impacts of tobacco. It seeks to recover the health care costs it incurred in treating its citizens' smoking-related illnesses.

The court dismissed Guatemala’s case because any injury to Guatemala was too remote to have been directly caused by the tobacco industry. Instead, individual Guatemalan citizens could sue the tobacco industry because of their direct injuries caused by smoking.

Propose Individual action  by Tobacco factory workers in Zambia for exposure to environmental tobacco smoke
Chances of success  are greater because argument of individual choice, does not apply
persons exposed to second hand smoke cannot be held responsible for their illness and easier to show causation in such cases

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Ethiopia: Potential area for offensive litigation (TAPS)

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Ethiopia: Potential area for offensive litigation (TAPS)

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There is no litigation instituted against or by the tobacco industry in Ethiopia. This may be partly because the industry had been owned by the government and partly, to a lack of awareness. But, now, the situation seems to change. The industry has threatened in many instances to sue the government and civil society organizations are growing and becoming more proactive. In this sense, there are possibilities of litigation both in defensive and offensive.

One of the areas for litigation is enforcement against tobacco companies. The tobacco industry has been involved in many violations, particularly in relation to TAPS including the CSR ban. Local civil society urged the government to take measures and EFDA warned the industry to refrain from its illegal activities. Based on the experience of other countries, the industry will never refrain from engaging in these activities and the government may proceed to sue the industry for failing to respect the law. Though it seems odd and complicated, there is a possibility of suing the industry along a particular government agency for collaborating with the industry.

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1. Asiimwe & 2 Ors v Leaf Tobacco & Commodities (U) Ltd & Anor case[2014] UGHCCD 279
Plaintiffs sought Orders/declarations that their right to a clean and health environment was being violated by the respondents, the continuous air pollution by emission of tobacco smoke, dust and smell to the environment by the respondent was a violation of the public’s right to a healthy and clean environment; the granting of a license by the 2nd Respondent to the 1st Respondent to process tobacco in a residential area contravened Article 39 of the Constitution and Sections 3(1) of the National Environment Act; that the 2nd Respondent failed to execute its legal obligations; an order restraining the 1st Respondent from continuing to violate the right to clean and healthy environment; an order directing the 1st Respondent to carry out a medical screening of residents around the factory; an order directing the 2nd Respondent to revoke the pollution license/approval and costs of the Application.
2. British American Tobacco Ltd Vs The Environmental Action Network, High Court Civil Application No. 27 of 2003; Ntabgoba P.J (as he then was) and no doubt one of the leading Ugandan Jurists, discussed at length Article 50 of the Constitution.  His Lordship held that the Article does recognize the existence of marginalized groups like children, illiterates, the poor and the deprived on whose behalf any person or group of persons could take action to enforce their rights.  That being the rightful position of the law, then I reject the submissions by both learned Counsel for the Respondents that the Applicants herein have no locus standi or cause of action.  I entirely agree with the submissions by learned Counsel for the Applicants that this Application is properly brought to protect and enforce a fundamental right to a clean and healthy environment as provided under Article 39 of the Constitution and the obligations of NEMA under Section 4 (3) of the National Environment Act.

4. Uganda Network On Toxic Free Malaria Control Ltd v Attorney General  Constitutional Petition 14 of 2009) [2016] UGCC 10 (11 March 2016);
The petitioner in paragraph 2 of the petition contends that in April and May 2008, the respondent commenced spraying of DDT in Oyam and Apac Districts for Malaria control. In paragraph 3 of the petition it is contended that the spraying of DDT amounts to a violation of the right to a clean and healthy environment as enshrined under Article 39 and is a violation of the right to life as enshrined under Article 20 of the Constitution.

5. Environment Action Network Ltd. v. Attorney General and National Environment Management Agency, High Court Miscellaneous Application No. 39 of 2001
The Court rejected the two objections based on the evidence as premature as the credibility of the evidence must be determined after a hearing on the substance of the evidence.

The Court held that the applicant was capable of bringing the claim representing the non-smoking Ugandan public as Article 50(2) of the Constitution provides that right. The Court also noted that given the number of affected persons, children and indigent adults, that do not have the resources or capacity to bring this application on their own behalf, the public interest is served by allowing the applicant to bring the application in their interest.

The Court held that as these proceedings were brought under Article 50(2) of the Constitution and concern the violation of fundamental rights, section 1 of Act 20 of 1969 does not apply. Instead, the Fundamental Rights and Freedoms (Enforcement Procedure) Rules apply. These only require that the Attorney-General and relevant parties receive notice, which the respondent received. The Court emphasized that as Article 50(2) is meant to protect fundamental rights, procedural requirements can’t be an impediment. Having a 45-day notice period as required in section 1 of Act 20 of 1969 could allow the government to violate rights for that period of time with no recourse.

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BRITISH AMERICAN TOBACCO KENYA LTD VS. CABINET SECRETARY MINISTRY OF HEALTH & 4 OTHERS(2016)eKLR

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BRITISH AMERICAN TOBACCO KENYA LTD VS. CABINET SECRETARY MINISTRY OF HEALTH & 4 OTHERS(2016)eKLR

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The petitioner challenged the constitutionality of tobacco control regulations of 2014 claiming among others that they:-
(i) infringed their intellectual property rights;
(ii)

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There was no any tobacco litigation in Ethiopia so far. But a potential ground/reason for possible new offensive litigation can be by the government to recover health costs. There are researches that suggest that tobacco is responsible for more than 70% of the lung cancer, more than 40% of chronic respiratory disease and 10% of cardiovascular diseases. The government is incurring a significant amount of money for the treatment of these patients and therefore has a legitimate reason to go after tobacco company (JTI International) in Ethiopia. See “Mengesha, S.D., Teklu, K.T., Weldetinsae, A. et al. Tobacco use prevalence and its determinate factor in Ethiopia- finding of the 2016 Ethiopian GATS. BMC Public Health 22, 555 (2022). https://doi.org/10.1186/s12889-022-12893-8”

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There was no any tobacco litigation in Ethiopia so far. But a potential ground/reason for possible new offensive litigation can be by the government to recover health costs. There are researches that suggest that tobacco is responsible for more than 70% of the lung cancer, more than 40% of chronic respiratory disease and 10% of cardiovascular diseases. The government is incurring a significant amount of money for the treatment of these patients and therefore has a legitimate reason to go after tobacco company (JTI International) in Ethiopia. See “Mengesha, S.D., Teklu, K.T., Weldetinsae, A. et al. Tobacco use prevalence and its determinate factor in Ethiopia- finding of the 2016 Ethiopian GATS. BMC Public Health 22, 555 (2022). https://doi.org/10.1186/s12889-022-12893-8”

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In the DRC, so far there has not yet been a lawsuit against the tobacco industry. The tobacco industry has also not filed a complaint against the government so far.
This is in my opinion due to the ignorance of the general public on the dangerousness of the consumption of tobacco products. The tobacco industry also doesn't complain because the health laws aren't too harsh on it. In addition, security issues are of much greater concern to the authorities than health issues.
In matters of TAPS, offensive litigation is possible because the tobacco industry often does not respect the rules in this matter.

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Health care cost recovery litigation

The Attorney General of Lagos State, et al. v. British American Tobacco (Nigeria) Limited, et al., High Court of Lagos State, Lagos, Nigeria,  Plaintiff seeks reimbursement for the cost of treating alleged smoking-related diseases, payment of anticipated costs of treating alleged smoking and health-related diseases for the next 20 years, various injunctive relief, plus punitive damages. It sort for the sum of 2.7 trillion naira ($22.9 billion) in damages.
It is unclear what the status is. TI claims the case was withdrawn by the Lagos State Government but there is nothing in the court records to confirm it. unfortunately, records were lost during the #EndSars movement because the court was burnt.

The Attorney General of Oyo State, et al., v. British American Tobacco (Nigeria) Limited, et al., High Court of Oyo State, Ibadan, Nigeria. Plaintiff seeks reimbursement for the cost of treating alleged smoking-related diseases as well as payment of anticipated costs of treating alleged smoking and health-related diseases. This case was settled out of court. The terms of the settlement are shrouded in secrecy. The Attorney General of Oyo State at the time is currently on retainership of BATN leading to suspicion that the case was compromised for personal gains.

CLASS ACTION

DA’ SILVA VS. BATN & ANOR NICN/IB/49/17.

ALABI VS. BATN & ANOR NICN/IB/48/17.

MAKINDE VS. BATN & ANOR NICN/IB/50/17.

AWE VS. BATN & ANOR NICN/IB/51/17

DADA VS. BATN & ANOR  NICN/IB/59/17

OMA-ONALO  VS. BATN & ANOR NICN/IB/60/17

ADELABU  VS. BATN & ANOR  NICN/IB/61/17

KOLAWOLE  VS.  BATN & ANOR  NICN/IB/62/17

HASSAN  VS. BATN & ANOR NICN/IB/71/17
JELILI  VS.  BATN & ANOR NICN/IB/72/17

OLANREWAJU  VS.  BATN & ANOR NICN/IB/73/17

The Claimants are ex-staff of the British American Tobacco Company Nigeria (BATN). They were disengaged on the ground of “Medical Redundancy”  without being paid their entitlements in line with provisions of the Employees Compensation Act. The case is still active and ongoing

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i. British American Tobacco Kenya, PLC v. Ministry of Health [Kenya] 2019
ii. British American Tobacco Ltd v. Ministry of Health (2017)
iii. British American Tobacco Kenya Ltd. v. Ministry of Health  (2016)
The above mentioned cases have instituted by the tobacco industry as a delay tactic for implementation for tobacco control laws.
However, there is opportunity for instituting offensive litigation against the tobacco industry.
The opportunities include:
1. Class action by victims affected by the harsh effects caused by smoking.
2. An action by government against the tobacco industry on the basis that the products have caused immense losses in government expenditure in that government has to step in and cater for medical costs for the citizenry who suffer the effects of products by tobacco industry.
3. Instituting proceedings on failure/ non-implementation by players of tobacco control regulations as enshrined in the Act and FCTC Treaty fully. This include regulations such as Smoke free zones, sale of single sticks etc.

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Nigeria still has a long way to go regarding tobacco litigation. Suing Tobacco company regarding conforming to Nigeria Tobacco Act 2019 will be a good starting point.

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(There has been no offensive litigation in Kenya to date)

Potential cases

Suits against Governtment to compel it to enforce specific tobacco control law.

Civil Suits against the tobacco industry for injury or disease suffered due to tobacco products consumption