Kenya: Billionaires Start Sh364 Million Global Fund to Defend Nations Like Kenya Against Tobacco Lawsuits

Source from:  The Star 03/26/2015

Kenya can now access a Sh364 million ($4m) fund to defend itself against lawsuits from tobacco companies.

The fund was announced on Wednesday by former New York Mayor Michael Bloomberg and Bill Gates at the World Conference on Tobacco or Health (WCTOH) in Abu Dhabi.

The two promised to stand with developing nations as they seek to protect their people against harmful tobacco use.

"Country leaders who are trying to protect their citizens from the harms of tobacco should not be deterred by threats of costly legal challenges from huge tobacco companies," said Gates, co-chair of Bill & Melinda Gates Foundation.

Cigarette maker BAT last month sued Kenya's Ministry of Health for threatening to stop the circulation of its Dunhill Switch cigarette brand.

Dunhill cigarette packs contain the tagline slogans 'Crush the capsule', 'Switch the experience', 'Refresh the taste', 'Switch' and 'Refresh the twist', which the ministry says is banned by the tobacco control act.

BAT lawyer Nazima Malik said in Nairobi: "We are extremely apprehensive that the director of Medical Services is likely to force the removal of BAT Dunhill Switch product from the market, which will paralyse their business and will also have an adverse effect on business of 11,310 wholesalers and retailers who stock the product all over Kenya."

Mayor Bloomberg said such lawsuits were intended to intimidate countries.

"We are at a critical moment in the global effort to reduce tobacco use, because the significant gains we have seen are at risk of being undermined by the tobacco industry's use of trade agreements and litigation," he said.

The Ministry of Health has been struggling to legalise new regulations to stiffen the tobacco act, but claims these efforts are being frustrated by the tobacco industry.

Cigarette smoking is the biggest preventable cause of cancer.

Director of Medical Services Dr Nicholas Muraguri was not available to comment on this matter.

The stiffer anti-tobacco laws being instituted globally follow the signing of World Health Organisation's (WHO) Framework Convention on Tobacco Control to stop the annual tobacco-related deaths of six million people globally.

The Bloomberg-led Anti-Tobacco Trade Litigation Fund comes as the industry ramps up its use of international trade agreements to slow health gains made by countries.

Uruguay, a poor South American nation, has the last four years been fighting a $25 million legal challenge by Swiss tobacco octopus Philip Morris International (PMI) against the country's graphic health warnings on tobacco products.

PMI claims Uruguay has breached trade agreements by forcing cigarette companies to cover 80 per cent of packets with graphic health warnings. "The amount is meant to intimidate Uruguay, which estimates it will be forced to spend $4 million to defend the case," Bloomberg said.

Australia is also fending off both a World Trade Organization (WTO) challenge and a legal challenge by PMI against its national law that requires cigarette packs to be sold in drab colors with only the graphic health warnings.

"Australia won its first case, which sends a strong message. But smaller, developing countries don't have the same resources. That's why we are supporting the Anti-Tobacco Trade Litigation Fund with Bloomberg Philanthropies," Bloomberg said.

The fund will also offer technical assistance in legislative drafting and documentation to avoid legal challenges and potential trade disputes from the passage of tobacco-control laws.

"This timely support from Bloomberg Philanthropies and the Bill and Melinda Gates Foundation will encourage low- and middle-income countries under attack from tobacco companies to fight back," said Matthew L. Myers, President of Campaign for Tobacco-Free Kids, a leading US anti-tobacco lobby.

To benefit from the fund, countries will need to demonstrate the importance of the outcome of the suit to both the specific country and other countries considering similar laws.

The will also demonstrate the legal defensibility of the tobacco control measure being challenged, and the probability of success from an international trade challenge, Bloomberg said.

The other measure is the size of the population that will benefit from the law and the commitment of the government to participating fully in the defense of the measure being challenged, including providing some level of financial support. Enditem