Victoire décisive pour la lutte anti-tabac: Batsa perd son procès en appel dans l'affaire de l'interdiction publicitaire en Afrique du Sud
The Supreme Court of South Africa dismissed an appeal brought by British American Tobacco South Africa (Batsa) on 20 June 2012. The appeal sought to overrule sections of the country's 1993 Tobacco Products Control Act that ban tobacco advertising. The dismissal constitutes a huge win for public health and a resounding defeat for cigarette companies who have looked to exploit apparent loopholes in South Africa's tobacco control legislation through multiple legal challenges over several years.
Since mid-2010, under a Bloomberg Initiative grant, The Union has been working with South African NGO The National Council Against Smoking (NCAS) to ensure effective implementation of the Tobacco Products Control Act. The latest appeal threatened many recent successes in the implementation of this act and jeopardised the future health of all South Africans. In order to protect the advertising ban, NCAS offered their services as an amicus curiae - a 'friend of the court' – on the side of the government, providing expert advice that the ban should be upheld.
NCAS has been vigilant in monitoring tobacco industry activity in South Africa and worked closely with the government to ensure implementation of the tobacco advertising ban. Cigarette companies initially sought to bypass the advertising ban by switching their advertising campaigns to social media forums and one-to-one advertising. In response, parliament amended the Tobacco Products Control Act to include a ban on 'viral' marketing'. Batsa then applied to the North Gauteng High Court to declare that the 1999 amendment was unconstitutional because it denied companies' rights to commercial expression and smokers' rights to freedom of expression. The High Court rejected Basta's application in May 2011. Basta then appealed the high court judgement to the Supreme Court in the most recent challenge.
In his judgement on the appeal, Justice Mthiyane ruled that 'There can be no question that the government has a responsibility to protect its citizens from the ravages of tobacco,' and that a 'prohibition on the advertising and promotion of tobacco is reasonable and justified.' The judgement also recognised that all tobacco industry communications to customers constituted advertising, which will make it very difficult for the industry to continue one-to-one advertising activities.