•Sanction and accommodation not the best combination in the circumstances

There are curiosities in the collision between the Federal Competition and Consumer Protection Commission (FCCPC) and British American Tobacco (Nigeria) Limited (BATN) and its affiliates, British American Tobacco Marketing (Nigeria) Limited (BATMN), British American Tobacco Plc, and British American Tobacco (Holdings) Limited.

The federal regulatory agency, in a statement on December 27, 2023, announced that it “came to a final resolution” with BAT Parties “with respect to a range of infringements of the Federal Competition and Consumer Protection Act, National Tobacco Control Act and sundry legal instruments.” This followed a three-year investigation of BATN and other affiliated companies, which commenced in August 2020, the agency said.

After establishing “multiple violations of the FCCPA and other enactments,” the regulatory body imposed a fine of $110m on BAT Parties, said to be the biggest ever penalty imposed by the agency, or even any quasi-judicial body, on any organisation, in Nigerian history.

It is curious that the FCCPC failed to disclose the offences that incurred such an unprecedented sanction and their implications for public health. It is also curious that BATN, in a statement reacting to the FCCPC press release, said it had already paid the humongous fine. If that is the case, such a payment, done without much ado, was not only an acceptance of guilt but also possibly a way of trying to quickly tidy up a messy matter.

Notably, transparency watchdog Corporate Accountability and Public Participation Africa (CAPPA) observed that “Nigerians need to know the full details of BAT crimes that made it willingly agree to dole out $110 million rather than face prosecution,” adding, “No amount of fine can atone for actions that compromise public health and undermine the economies of nations.”

The commission explained that prior to the fine it had received a written request for cooperation from BAT Parties under its Cooperation/Assistance Framework (CAF), which provided for “benefits such as possible reduced monetary penalties,” waiver of the application of its Administrative Penalties Regulations 2020, as well as “prosecutorial discretion.”

Indeed, it is likely that BAT Parties deserved a bigger fine, if it were not for the ameliorative provisions. In the context, the agency said it withdrew pending criminal charges against BATN and at least one employee “with respect to obstructing the commission by attempting to prevent execution of the search warrant and initial lack of cooperation/compliance with steps in the investigation.”

Apparently, the regulatory body had bent over backwards, sending confusing signals indicating a combination of punishment and accommodation, which may be ultimately counter-productive.

In another instance of puzzling accommodation, the FCCPC, as part of the sanctions, gave BATN permission to conduct a so-called public health and tobacco control advocacy, contrary to Section 38 of the National Tobacco Control Act 2015 barring tobacco industry players like BAT from handling education, communication, training and awareness advocacy about the harmful effects of tobacco products.

Section 38 states that “A person or entity working on behalf of or furthering the interest of the tobacco industry shall not be involved in any manner in youth, public education, or other initiatives to tobacco control or public health, including and funding of such activities.”

In the circumstances, the Federal Ministry of Health, and not systems and structures connected with BAT, should handle education, communication, training and awareness about the harmful effects of tobacco products. BATN cannot regulate itself, and must not be given the impression that it can.

It is commendable that the regulatory agency heavily fined the BAT Parties for serious violations, but the absence of crucial clarifications, and liberal cooperation with the offenders, left much to be desired.

Its mandate to promote and ensure fair markets, protect consumer interests, enforce the law and hold businesses accountable demands greater transparency and strictness. This is even more so when it concerns public health.

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