The High Court’s recent dismissal of a petition seeking to prohibit the manufacture, importation, sale and distribution of Johnson & Johnson’s talc-based baby powder in Kenya is a timely reminder that public interest litigation, particularly in matters involving consumer safety and public health, must be grounded in cogent evidence and respect established statutory processes. While the petition raised legitimate concerns arising from international developments surrounding talc-based products, the Court ultimately held that those concerns, without proof of harm within the Kenyan context, were insufficient to warrant the drastic reliefs sought.
The petition was anchored on the World Health Organization’s International Agency for Research on Cancer (IARC) classification of talc as “probably carcinogenic to humans”, previous litigation against Johnson & Johnson in the United States, and regulatory measures reportedly adopted in other jurisdictions. The petitioner contended that the continued availability of the product in Kenya violated the constitutional rights to life, health, consumer protection and access to information. However, the Court found that no evidence had been presented to demonstrate that the talc-based baby powder sold in Kenya contained asbestos, was carcinogenic, or had caused injury to Kenyan consumers. The Court was clear that constitutional relief cannot be granted on speculation or by importing findings from foreign jurisdictions without demonstrating their applicability to the products available in the local market.
Equally significant was the Court’s reaffirmation of the doctrine of constitutional avoidance. It observed that the dispute fell squarely within statutory frameworks established under the Consumer Protection Act and the Standards Act, both of which provide mechanisms for product testing, consumer complaints, regulatory enforcement and product recalls. Having failed to first invoke those statutory remedies, the petitioner could not properly invite the Court to determine the matter as a constitutional dispute in the first instance. The judgment reinforces the principle that constitutional litigation should not supplant specialised regulatory regimes where Parliament has already provided adequate mechanisms for resolving such disputes.
The decision also offers important guidance on the role of the Kenya Bureau of Standards (KEBS). The Court accepted KEBS’ evidence that, following the 2019 alert by the United States Food and Drug Administration concerning a contaminated batch of Johnson & Johnson baby powder, it investigated whether the affected batch had entered the Kenyan market and established that it had not. KEBS further demonstrated that it had strengthened regulatory oversight by revising applicable standards to require mandatory asbestos testing for imported baby powders and by subjecting such products to enhanced inspection under the Pre-Export Verification of Conformity programme. On that basis, the Court found that KEBS had acted reasonably and within its statutory mandate.
Nonetheless, the judgment should not be interpreted as absolving regulators from continuing vigilance. International product safety alerts, even where they relate to products outside Kenya, should invariably trigger a structured risk assessment by local regulators. Such measures ought to include market surveillance, random sampling and independent laboratory testing of products already on retail shelves, verification that imported products originate from compliant manufacturing batches, periodic publication of testing outcomes to promote consumer confidence, and close collaboration with the Ministry of Health and county public health authorities. Regulatory transparency is particularly important where products intended for infants are concerned, as public confidence depends not only on the safety of the product but also on the visibility of the oversight exercised by the regulator.
The broader significance of the decision lies in its balanced treatment of consumer protection and regulatory accountability. The Court did not dismiss concerns regarding talc-based products; rather, it emphasised that allegations of public health risk must be supported by credible, locally relevant scientific evidence. At the same time, it recognised that statutory regulators remain the primary institutions responsible for evaluating product safety and taking proportionate enforcement action where risks are identified.
Ultimately, the judgment reinforces three enduring principles of Kenyan public law: constitutional remedies are evidence-driven; specialised statutory mechanisms should ordinarily be exhausted before constitutional intervention is sought; and effective consumer protection depends as much on proactive regulatory oversight as it does on judicial enforcement.
