British American Tobacco South Africa (Pty) Limited v Minister of Health

British American Tobacco South Africa (BATSA), a tobacco manufacturer, challenged the interpretation and constitutionality of s 3(1)(a) of the Tobacco Products Control Act 83 of 1993 as amended in 2008, which imposes a comprehensive ban on the advertising and promotion of tobacco products. BATSA was concerned that the prohibition extended to one-to-one communications with consenting adult tobacco consumers, preventing it from providing product-related information such as packaging changes, brand migrations, new products, and comparative harm claims. After unsuccessful engagement with government, BATSA sought declaratory relief in the North Gauteng High Court that the provision did not apply to such one-to-one communications, alternatively that it was unconstitutional for unjustifiably limiting freedom of expression under s 16 of the Constitution. The High Court dismissed the challenge, and BATSA appealed to the Supreme Court of Appeal.

The appeal was dismissed. The costs order of the High Court was set aside and replaced with an order that there be no order as to costs.

The case confirms the constitutionality of South Africa’s comprehensive ban on tobacco advertising and promotion, including one-to-one communications with consenting adults. It reinforces the principle that commercial speech may be heavily restricted in the interests of public health and affirms the importance of international law obligations, particularly the WHO Framework Convention on Tobacco Control, in constitutional limitation analysis.