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South Africa: BAT fails in latest challengeS to law

After years of trying to wreck South Africa's tobacco control legislation, British American Tobacco (BAT) has almost reached the end of the road. On 20 June, the country's supreme court dismissed an appeal from BAT's South African subsidiary, Batsa, against the judgement of a lower court which had ruled that the country's tobacco advertising ban was constitutional.

South Africa banned tobacco advertising in 1999 by an amendment to the Tobacco Products Control Act of 1993. However, cigarette companies claimed there was a loophole that allowed them to continue advertising via social media and direct-promotions: in industry language, to communicate ‘accurate and truthful’ information on a one-to-one basis with adult smokers. Strategies included ‘cigarette parties’ and viral or ‘buzz’ marketing; particularly effective in reaching children and adolescents.

In 2008, parliament again amended the law to outlaw such marketing tactics. However, in 2009 Batsa went to the North Gauteng High Court, in the capital, Pretoria, asking it to declare the amendments to the law unconstitutional, or interpret it to allow one-to-one promotions to continue. When the court rejected Batsa's case in May 2011, Batsa appealed to the Supreme Court of Appeal.

The case demonstrated the importance of the WHO Framework Convention on Tobacco Control (FCTC) in defending national legislation. The judgement specifically stated that South Africa, as a Party to the FCTC, was obliged to consider the treaty's requirements, specifically Article 13, requiring Parties to ban all tobacco advertising, promotion, and sponsorship. It was not open to the health minister and the legislature to ignore the FCTC when considering what steps to take to deal with the risks posed by tobacco use.

The clear evidence that tobacco advertising increases …

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