British American Tobacco South Africa v. Minister of Health

Section 3(1)(a) of the Tobacco Products Control Act of 1993 (the “Act”) prohibited any person from “advertising” or “promoting” a tobacco product.  The appellant, a tobacco manufacturer, contended that this prohibition should not extend to its one-to-one communication with consenting adult consumers of tobacco products as it was an unconstitutional limit on both the appellant’s right to freedom of expression, as set forth in section 16 of the constitution of South Africa (the “Constitution”), and the tobacco consumer’s right to receive information.

The court agreed with appellant that freedom of commercial expression entailed not only the right to impart information, but the right for consumers to receive it in order to make informed choices. However, the court confirmed that rights safeguarded by the Bill of Rights may be limited to the extent that such limitation is reasonable and justifiable based on factors such as human dignity, equality and freedom, the nature of the right and the nature and extent of the limitation. Balancing the right of smokers to receive information regarding tobacco with the government’s obligations to protect its citizenry from the harmful effects of tobacco, the court found that the right to commercial speech in this instance must give way to the public health considerations.

Furthermore, the court noted that South Africa had obligations under international law to ban tobacco advertising and promotion and that, under the Constitution, the court was obliged to have regard to international law when interpreting the Bill of Rights.

Finally, with respect to the appellant’s request to interpret the law as allowing a one-to-one exception for communication with consenting adult tobacco users, the court found that as the one-to-one communication would constitute the very advertisement and promotion of the tobacco product that the legislature sought to ban, and as the public health considerations and countervailing right to healthy environment made a strong case for the limitation, it was unnecessary for the court to read in any words to ensure the statute’s constitutionality.

One judge concurred in the decision, noting that, with respect to the rights of consenting adult tobacco users to receive information, the activity prohibited by the statute was only the tobacco manufacturer’s taking of initiative in making the communication, not their response to a tobacco user’s request for information. This judge also noted that consenting adult tobacco users should be considered “members of the public” as the legislature had elsewhere in the statute enumerated those persons with whom the prohibition on commercial communication did not apply. With respect to the tobacco manufacturers’ right to freedom of expression, the concurring judge agreed that such right was outweighed by public health considerations and the countervailing right to healthy environment.

“25. I have already indicated that any right in the Bill of Rights may be limited by a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account the relevant factors, including the nature of the right, the importance of the limitation and its nature and extent. The right to commercial speech in the context of this case is indeed important. But it is not absolute. When it is weighed up against the public health considerations that must necessarily have been considered when imposing the ban on advertising and promotion of tobacco products it must, I think, give way. The seriousness of the hazards of smoking far outweigh the interests of the smokers as a group.”

“26. The Minister has in my view established that the prohibition on advertising and promotion of tobacco products is reasonable and justified. There can be no question that government has an obligation to protect its citizens from the ravages of tobacco use. Smoking is undoubtedly hazardous and has an adverse effect on health care. In terms of s 27(1) of the Constitution everyone has the right to have access to health care services which the State is obliged to provide and to carry the costs of, if necessary. All of these facts highlight the purpose, the importance and the effect of the limitation. The impugned prohibition is targeted at any member of the public, amongst whom are consenting adult smokers. As I have already pointed out, there are also those that are trapped in the habit of smoking and wish to rid themselves of it and those that have given up and do not wish to go back to old habits. Although I do not consider that there are less restrictive means available to enforce the impugned provisions, it is not possible to carve out an exception from the prohibition of the use of tobacco. In the case of  Prince v President, Cape Law Society & others the Constitution Court found it impossible to carve out an exception in respect of the use and possession of cannabis. Similarly, in the present matter it will be impossible to carve out an exception in respect of consenting adult tobacco users (or smokers). In the circumstances a blanket ban on advertising and promotion is, to my mind, the only way to address the issue ─ an objective the impugned prohibition seeks to achieve.”