Court rules against British American Tobacco on cigarette advertising

THE Supreme Court of Appeal ruled on Wednesday that the health hazards of smoking outweighed the interests of smokers as a group. It dismissed an appeal brought by British American Tobacco of South Africa (Batsa) against an order by the North Gauteng High Court. Batsa makes and distributes more than 20 brands of cigarettes in South Africa, and employs about 2000 people.

 The appeal concerned the proper interpretation of section 3(1) (a) of the Tobacco Products Control Act, as amended by the Tobacco Products Amendment Act, which relates to a prohibition on the promotion and advertising of tobacco products. Batsa had approached the high court for a proper interpretation of the act, arguing that in terms of section 16 of the constitution, the impugned prohibition limited its right to engage in commercial expression, as well as tobacco consumers’ right to freedom of expression. The cigarette maker 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-to-one communication between consenting adult tobacco consumers and tobacco manufacturers, importers, wholesalers and retailers. The Supreme Court of Appeal said it had to consider whether the act’s limitations were reasonable and justifiable in an open, democratic society. It also had to consider the rights of smokers to receive information concerning tobacco products and the government’s obligation to protect its citizens from the damaging effects of tobacco. The court found there were powerful public health considerations for a ban on advertising and the promotion of tobacco products, and that the seriousness of the hazards of smoking far outweighed the interests of smokers as a group.

It also held that South Africa had international law obligations to ban tobacco advertising and marketing. Therefore, the court found the prohibition on advertising and promotion of tobacco products was reasonable and justifiable as required by the constitution. The Department of Health published draft regulations to the Tobacco Products Control Act on March 30. If passed in their existing form, they will tighten restrictions on smoking in all public areas, including covered walkways, service areas, inside bars, on beaches and in restaurants — leaving little more than private homes and cars where smoking will be legal. The proposed amendments also seek to prohibit smoking at workplaces, as they are deemed "public places".