The cases below illustrate how laws protecting public health policies from tobacco industry interference have been challenged; how parties have framed their defences to such challenges; how Courts have considered the issues at stake; and, how Courts have applied Article 5.3 and its guidelines of their own accord in determining challenges to other tobacco control measures. 

The list is not exhaustive but provides some examples of how issues have been framed in different legal challenges.

British American Tobacco Kenya, PLC v Ministry of Health, et al., Petition No. 5 of 2017 (Supreme Court of Kenya, 2019, see also High Court and Court of Appeal)

BAT challenged the Tobacco Control Regulations (2014) on various grounds. It argued, among other things, that provisions implementing Article 5.3 violated the right to public participation, discriminated against the tobacco industry, and breached its freedom of association under the Kenyan Constitution.

The High Court, Court of Appeal, and Supreme Court of Kenya dismissed the challenge. There was no violation of the right to public participation because BAT had had an adequate opportunity to make its views known through the public consultations held by the government. The Article 5.3 provisions also did not discriminate against BAT, or tobacco companies in general, because it was reasonable to treat the tobacco industry differently from other industry, in light of the negative health impacts of tobacco. There was also no breach of the right to freedom of association because the regulations did not bar all interactions between the tobacco industry and public officers, but merely limited them in a way to ensure accountability and transparency. For more information about this case, see Supreme Court of Kenya rejects British American Tobacco appeal against Tobacco Control Regulations.

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

The Constitutional Court of Uganda rejected a legal challenge brought by British American Tobacco (BAT) against the Tobacco Control Act 2015 (Act) of Uganda, which includes provisions implementing Article 5.3. BAT challenged these provisions of the Act as violating its freedom to practice a lawful trade, occupation or business. BAT argued that the provisions amounted to discrimination and violated the rights of directors, officers and managers to a fair hearing. BAT also argued that they resulted in the discriminatory treatment of tobacco industry employees who would be barred from future employment within government.

The Court rejected BAT’s arguments on all grounds. The Court found that the Tobacco Control Act was enacted by Uganda with the objective of implementing the WHO FCTC and meeting its duties under the right to life. It found that none of BAT’s rights, including with respect to freedom to engage in trade or business, were ‘curtailed or otherwise abridged beyond what is justifiable’, and that the limitations imposed upon BAT and any other persons under the Act were justifiable in a free and democratic state. The Court noted that the petition was one of many cases brought around the world to ‘influence policy and thwart effective legal and policy framework world-wide’ and undermine tobacco control legislation ‘to increase their profits irrespective of the adverse health risks their products pose to human population’. The Court upheld the constitutionality of the Act and dismissed BAT’s petition in its entirety. For more on this case, see Uganda: Constitutional Court dismisses BAT legal challenge against Tobacco Control Act.

British American Tobacco and Ors v Department of Health, EWHC 1169 (High Court, England and Wales, 2016) and British American Tobacco (UK) Limited and Ors v UK Department of Health, EWCA Civ 1182 (Court of Appeal, England and Wales, 2016)

The four major tobacco companies and four tipping paper manufacturers challenged the United Kingdom’s tobacco standardized (plain) packaging laws. The High Court of England and Wales dismissed the challenge on all grounds. In doing so, it noted that its assessment of the evidence was guided by the fact that the tobacco industry had long had ‘a deliberate policy of subverting public health policy’, including as recognised in Article 5.3 and its guidelines. The complainants appealed the High Court’s judgment, including in relation to the statements regarding Article 5.3. The Court of Appeal upheld the High Court’s decision in its entirety, noting that the judge was ‘entitled to treat [Article 5.3 and its guidelines] as telling in favour of subjecting the evidence of the tobacco companies to rigorous scrutiny’. In any case, the High Court’s reliance on Article 5.3 had not caused it to ‘disregard or marginalise’ the tobacco companies’ evidence – the Court of Appeal noted that the judge had nonetheless reviewed and scrutinised all of the evidence. For more on these cases, see The High Court of Justice decision on UK standardized packaging: Key points for other jurisdictions and Court of Appeal of England and Wales upholds UK plain packaging judgment.