By Samwel Doe Ouma @samweldoe
A new report has uncovered serious violations of the Kenya Tobacco Control Act in the introduction, promotion, and continued sale of the highly-addictive nicotine pouches in Kenya.
According to the report titled: ‘Assessment Report on the Tobacco Industry Interference with the Regulation of Novel Tobacco Products in Kenya.’ The Kenyan market is now littered with nicotine pouches under the brand name “Velo” in utter contempt of the Ministry of Health’s public health directive and in violation of the Tobacco Control Act.
“Nicotine as the primary constituent in nicotine pouches has been proven to have various adverse effects on human health. These include increased risk of fatality when suffering from cardio-vascular disease, effects on reproduction, increased cancer risks, impairment of adolescent brains, reduced cognitive ability, and increased risk of heart attack among others,” said Mr. Samuel Ochieng, the Executive Director of Consumer Information Network.
However, the report further reveals that in July 2019, Kenya allowed for circulation and sale of nicotine pouches under the brand name Lyft after they were registered by the Pharmacy and Poisons Board (PPB)-The national medicines and poisons regulator-, but were stopped by Cabinet Secretary for Health in October 2020.PPB illegally registered Lyft as a pharmaceutical product.
As per the Ministry of Health’s directive, nicotine pouches remain illegal in Kenya unless they fully comply with the Tobacco Control Act just like other tobacco products on the market.
The report was produced through in-person interviews with representatives of various stakeholder entities in the tobacco control sector, analysis of information from government documents, public notices, media output, documents from tobacco manufacturers such as the BAT, tobacco control published reports, research on nicotine and oral nicotine pouches, case law, existing tobacco control laws at the national level and relevant international conventions and treaties, particularly the Framework Convention on Tobacco Control, its implementation guidelines as set out by the World Health Assembly.
It outlines various instances of violation of and interference with the law beginning from and in the introduction of nicotine pouches in 2019.
This irregularity was noted in October 2020, by the cabinet secretary for health, who formally wrote to the Pharmacy and Poisons Board demanding a comprehensive report on the criteria used and the circumstances leading to the registration of Lyft as a medicinal product. Following this, sales of the product were proscribed until further notice by the minister.
“The irregular registration of LYFT as a pharmaceutical product after BAT-Kenya applied and had the Pharmacy and Poisons Board approve Lyft to be sold as a pharmaceutical product per the Pharmacy & Poisons Board Act, in spite of BAT-Kenya being cognizant of the fact that this was not a pharmaceutical product or a poison was a violation of existing regulations laws,” the report read in part.
The Tobacco Control Act, 2007 defines a tobacco product as “a product composed, in whole or in part, of tobacco, including tobacco leaves and any extract of tobacco leaves intended for use by smoking, inhalation, chewing, sniffing or sucking and includes cigarette papers, tubes, and filter.”
“The report recommends improved enforcement of bans or regulatory mechanisms by the relevant regulators. It has been noted that there has been a rise in availability of pouches in the market via the brand name Velo which despite non-compliance with the ministry’s directive has been found to be sold,” the study report indicates.
The report was produced by the Consumer Information Network, the Kenya Tobacco Control Alliance, and the International Institute for Legislative Affairs with support from Stopping Tobacco Organizations and Products (STOP), a global Tobacco Industry Watchdog.
The report is the culmination of concerted efforts from the three organizations bolstered by input from the Ministry of Health, the National Parents’ Association, media, victim or user groups, academia and research entities, youth group representatives, and other key health stakeholders in the civil society.
According to the report, Kenya’s leading tobacco industry disguised its corporate social responsibility and exploited the pandemic disruptions to promote sales of its products despite evidence that they significantly increase victims’ risk of infection, getting severe Covid leading to hospitalization and increased risk of mortality for Covid-19 patients.
BAT-Kenya Plc, then made a contribution of Kshs. 10.6 million to the Covid-19 kitty controlled by the government. Subsequent to the donations in April 2020, tobacco products were listed as part of the essential goods the Business Emergency Response Centre set up by a committee under the Ministry of Industrialization, Trade and Enterprise Development to respond to issues affecting the business sector, the report says.
“It posed as an entity concerned with society’s health while simultaneously pushing products which exacerbate COVID-19 effects and add financial strain to health systems. It is manifest that its actions were motivated at foremost by profits and marginally by concern for the public well-being. It employed its innovation and resources to ensnare new customers for its products while attempting to sidestep health policy and regulatory mechanisms,” said Thomas Lindi, KETCA’s National Coordinator.
The campaign by BAT for tax relief on its Oral Nicotine Pouch manufacturing plant
The firm approached the Kenya Revenue Authority (KRA) in September 2020 to request a tax-relief for the nicotine pouches to be manufactured at the plant for example exemption from imposed excise duty for two years. Per the Tobacco Control Act, 2007 (Sec. 12); the cabinet secretary in charge of Finance is mandated to implement tax policies and where appropriate to reduce the consumption of harmful products such as nicotine pouches and cigarettes.
Additionally, Section 32 of Tobacco Control Regulations, 2014 mandates the cabinet secretary in charge of financial matters or any other public authority not to grant any incentives, privileges, benefits or any other preferential treatment to the tobacco industry to establish or run their business. It was thus proper that the company’s request was declined.
The industry’s campaign for lesser excise taxes on these products within the budget process.
The tobacco industry has an ever-present advocacy campaign to lower excise taxes for its products. As noted above it identified nicotine pouches as a healthier alternative to combustible conventional products such as cigarettes hence the basis for lesser taxation.
To undermine regulation, the industry has persistently pushed the unproven, and likely false narrative of these products as less harmful relative to others.
There is need for enhanced laws and regulations (tobacco control laws) to curb loop-holes exploited by the industry to the detriment of the regulators, stakeholders and the public.
“We also advocate for stringent application or amendment of election and political financing laws to curb the influence of the tobacco industry in affecting policy and legislation,” said Celine Awuor, the Chief Executive Officer of the International Institute for Legislative Affairs.
