Manufacturers of tobacco products will start contributing two per cent of the value of the tobacco products they manufacture or import in a given financial year to assist the State in dealing with the adverse effects of tobacco consumption.
This is after the Supreme Court allowed the Tobacco Control Regulations 2014 to be effected without further delay.
The regulations, made pursuant to Section 53 of the Tobacco Control Act, 2007 seek to regulate various aspects of the tobacco sector in Kenya relating to the manufacture, sale and advertising of tobacco products.
Director of Public Health Kepha Ombacho says they are in the process of establishing a board to manage the Tobacco Control Fund.
“We have embarked on enforcing the law because the court has given us the go ahead. All those in the industry should be able to comply. The bigger winners here are the public. This has taken long but it is finally here,” Dr Ombacho said.
The regulations were supposed to come into force on June 5, 2015, but one of the major players – British American Tobacco Kenya Ltd (BAT) – contested and the court on June 4, a day before enforcement, granted interim orders to restrain the implementation pending hearing and determination of the petition.
Similar stay orders were granted by the Court of Appeal and the Supreme Court.
“The funds will be used to support and improve health programmes which are addressing issues of public health education, non-communicable diseases, as well as support publication of communication materials,” said Dr Ombacho.
He added that this will greatly contribute to the Universal Health Coverage (UHC), which is a key component of the government’s ‘Big Four agenda’, for development.
Senior State Counsel Adow Deiss Mohamed, who defended the petition from the high court to the Supreme Court, during the hearing urged the Supreme Court to dismiss the BAT appeal so that the regulations can come into force with immediate effect, so as to guard the effects of tobacco from those who smoke and those who do not.
Supreme Court judges comprising Chief Justice David Maraga, his deputy Philomena Mwilu, Justices Jackton Ojwang’, Smokin Wanjala and Njoki Ndung’u said since the Court of Appeal verdict was proper, they could not agree with BAT’s request that the enforcement of the law be delayed by a further six months.
Regarding the disclosure of information about their products and which the tobacco industry players claimed was aimed at depriving them on their intellectual property rights, the court said the requirements are aimed at identifying the products and ingredients used by the manufacturers of tobacco products, ensuring that public health authorities have full information about the ingredients and the health effects.
“We find that the Court of Appeal correctly applied the test of proportionality in resolving the friction between the competing rights of BAT to its intellectual property vis-à-vis the need to ensure a safe and clean environment, free from the hazards of tobacco use, for the public,” ruled Supreme Court judges on November 26, 2019.
Court of Appeal judges Hannah Okwengu, Festus Azangalala and Fatuma Sichale had on March 24, 2016 upheld the regulations, saying their implementation does not violate the Constitution and that the two per cent was not a tax that required to be passed by Parliament for it to be lawful.
The courts separately held that the Tobacco Control Act has very clear objectives of safeguarding the public from the dangers posed by consumption of tobacco.
According to the act, consumption of tobacco has been implicated in causing debilitation, disease, and death.
“The regulations which are contested in this petition are intended to safeguard the public, those who smoke and those who do not, and to provide certain information with regard to the contents of tobacco products,” explained Judge Mumbi Ngugi, when she first allowed them to take effect in the judgment delivered on March 24, 2016.
Equally contested was the regulations on packaging and labelling, but the court observed that the legislative intention behind the regulations was to regulate advertising of tobacco products and to ensure that consumers were fully aware of the nature and content of the tobacco products that they consumed.
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