SCA turns smokers’ rights to ashes

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The Supreme Court of Appeal has found that the health hazards of smoking outweigh the interests of smokers as a group.

The SCA dismissed an appeal against an order by the Pretoria High Court brought by British American Tobacco of SA (Batsa).

The appeal concerned the proper interpretation of a section of the Tobacco Products Control Act, as amended by the Tobacco Products Amendment Act, which relates to a prohibition on the promotion and advertising of tobacco products.

Batsa approached the high court for a proper interpretation of section 3 of the act.

It argued that in terms of section 16 of the constitution, the impugned prohibition limited the company’s right to engage in commercial expression and the right to freedom of expression of tobacco consumers.

Batsa argued that tobacco consumers were denied the right to receive information concerning tobacco products. It sought a court order that the impugned provision did not apply to one-to-one communications between tobacco manufacturers, importers, wholesalers and retailers, and consenting adult consumers. The SCA said the appeal was whether the limitations were reasonable and justifiable.

The court held that it had to consider the rights of smokers to receive information concerning the tobacco product and the government’s obligation to protect its citizens from its hazardous effects.

It found that there were powerful public health considerations for a ban on advertising and promoting tobacco products, and that the seriousness of the hazards of smoking far outweighed the interests of smokers as a group.

The SCA judgment found that the prohibition on advertising and promotion of tobacco products was reasonable and justifiable as required by the constitution. – Sapa

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