BAT in high court bid for right to market cigarettes
Dec 07 2009
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British American Tobacco (BAT) SA is fighting for its constitutional right to market cigarettes. The company, which accounts for about 90% of SA's cigarette market, said Wednesday, 2 December 2009, it wanted the high court to lift a ban on “one-to-one” communication with smokers.

If it did not get that, it wanted the court to declare the ban to be an infringement of the company's constitutional rights.

“The company seeks for the (law) to be amended to allow one-to-one communication with its consenting adult smokers,” it said.

A judgment in BAT's favour could reverse amendments to the Tobacco Products Control Amendment Act proclaimed in August. These further curtailed the room companies such as BAT have to market their products. Conventional advertising channels were closed to tobacco producers in 2001 and they have since had to rely on other measures.

There is dispute, however, about exactly what “one-to-one” communication means. The National Council Against Smoking, a lobby group, said BAT wanted to use the challenge to overcome restrictions on advertising and promoting cigarettes to young people, through word-of mouth invitations to parties promoting smoking.

“In practice, this means that the industry will be able to use techniques known as ‘viral', ‘buzz' or guerrilla marketing to target teens,” said spokesman Yussuf Saloojee.

BAT denied this.

“This form of communication has absolutely nothing to do with interacting in any shape or form with children or nonsmokers for that matter. Any reference to parties or any other form of mass gathering is totally misleading and disingenuous as all forms of mass communication have been banned,” it said.

Mark Ansley, a portfolio manager with Cadiz Asset Management in Cape Town, said producers accepted that sales volumes were falling and in response, were trying to promote more expensive brands and lure customers from rivals. Word of mouth was one of the few ways to do this.

“There are not many options left after that, are there?” Ansley said. “At the moment your main focus on markets is point of sale. If you can be in the stores one on one, trying to convince a guy not to take Marlboro or Camel, but to give Dunhill a bash, that's the best thing you can do.”

The Department of Health, which agrees with the council, says it will oppose the application.

“We will ask the court not to allow an interpretation that would allow them to continue advertising,” said Cyril Ramasala, the department's chief director of legal services. “They're saying it constitutes a violation of rights of freedom of expression. That right is not absolute. (The law) allows us to limit rights in certain circumstances.”.

Adapted from Source: Business Day, 4 December 2009