Kenya- BAT's Tactics to Undermine the Tobacco Control Regulations

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Kenya has the highest recorded smoking prevalence in Sub-Saharan Africa,[1] [2] and ten percent of 13-15-year-olds smoke.[3] Since Kenya’s ratification of the Framework Convention on Tobacco Control (FCTC) in 2004, the Ministry of Health has been advocating for legislation that decrease the prevalence of smoking.

Kenya’s efforts to try and introduce tobacco control legislation that regulates the marketing and sale of tobacco products has been resisted by British American Tobacco (BAT) and other tobacco companies, which see Kenya as a key frontier for profit growth.[4]Consequently legislation in the country has repeatedly been thwarted by the tobacco industry.[5] [6] [7]

Tobacco Control Legislation in Kenya

Kenya’s Tobacco Control Act 2007 took over 13 years to be passed, largely due to what has been labelled by the Kenya Ministry of Public Health and Sanitation as “intimidation” and “interference” from the tobacco industry.[5] The Act tried to introduce regulations that already exist in much of the Western world, such as required text warnings on cigarette packets, designated smoking zones in public places and the prohibition of tobacco advertising, promotion and sponsorship. However, since its creation in 2007, implementation has been difficult.

More recently, Kenyan policymakers have been trying to pass new regulations- which would strengthen the evidence-based framework established by the existing Tobacco Control Act.[8] As of May 2015, the Tobacco Control Regulations 2014 are still awaiting enactment from the Kenyan parliament before being passed into law.

Tobacco Industry Opposing Regulations

The tobacco industry’s main quarrels with the new regulations remain:

  • the imposition of a small financial Contribution of 2% of the value of manufactured and imported tobacco products (which would go towards mitigating the health and socio-economic consequences caused by the products the industry sells)
  • the requirement of standard graphic health warnings as many people cannot read text warnings
  • the restriction of the tobacco industry’s involvement in the policymaking process as mandated by the FCTC[9] [10]

Industry Tactics to Interfere with the Regulations

Some of the ways the tobacco industry has tried to hinder the regulations are outlined below:

Getting Senior Government Officials to Lobby on Their Behalf

On February 3rd 2015, the Kenyan Ministry of Health received a letter from the President’s Office requesting a meeting to “come up with a common understanding” on the new regulations and to discuss concerns listed in a briefing passed on from the Ministry of Foreign Affairs and International Trade. This document proposed that the regulations be withdrawn completely or redeveloped in collaboration with stakeholders, of which tobacco companies are highly prominent.[11]

Influencing Policymaking Through Trade Committees and Third Parties

On 20th January 2015, the Technical Barriers to Trade (TBT) Committee in Kenya held a meeting to discuss the draft regulations. The meeting was attended by two staff members of BAT as well as representatives of the Kenya Association of Manufacturers (KAM),[12] of which BAT is a member.[13] [14] At the meeting, KAM gave a presentation offering the exact same arguments that tobacco companies have used in their correspondence opposing the regulations.[15] The TBT Committee has been utilised by the industry as a key outlet for influencing policy. In March 2012, the Ministry of Trade collaborated directly with the tobacco industry to host a workshop for all stakeholders at a resort spa meant to “build the technical competence…on the trade issues of concern”.[16]

Requesting Information Indirectly Through Seemingly-Independent Parties

In January 2015, the Kenya Ministry of Health received a letter from an individual describing herself only as “a citizen of the Republic of Kenya” requesting all available information and correspondence pertaining to the regulations be handed over. Her contact information was the same as BAT Kenya’s headquarters although she failed to disclose this conflict of interest.[17]

Engaging with Policymakers in Violation of International Treaties

Both BAT and Mastermind Tobacco Kenya (MTK) have, on multiple occasions, directly engaged Parliamentary Committees using what have been described by senior civil servants at the Ministry of Health as “manipulative tactics”[18] declaring their objections to the regulations and requesting meetings in person to discuss alterations.[19] [20] As a signatory to the FCTC, there is meant to be limited, supervised interaction between the industry and government officials.[21]

Filing a Legal Claim Against the Ministry of Health

On the 14th of April 2015, BAT Kenya filed a petition at the High Court insisting the Tobacco Control Regulations 2014 were “unconstitutional” and requesting that the regulations be dismissed entirely. [22][23]

  • For more information on how the industry has used the legal strategy to influence the policy process in other parts of the world, see Legal Strategy

TobaccoTactics Resources

For more information on the tobacco industry and Africa, see:

Additional Resources

This piece was originally written by the TCRG for The Guardian's Sustainable Business website and was published on 2 March 2015.

Notes

  1. Tobacco Control Unit, Ministry of Health Kenya, Global Adult Tobacco Survey 2014 Executive Summary, 2014, accessed April 2015
  2. Campaign for Tobacco Free Kids, New Survey Shows Need for Kenya to Take Strong Action to Save Lives from Tobacco Use, 02 December 2014, accessed April 2015
  3. Tobacco Control Unit, Ministry of Health Kenya, Global Youth Tobacco Survey Factsheet Kenya, 2013, accessed April 2015
  4. RR. Jackson, Tobacco industry accused of ‘intimidation and interference’ in Kenya, The Guardian, 2 March 2015, accessed April 2015
  5. 5.0 5.1 Ministry of Public Health and Sanitation, International Institute for Legislative Affairs, Centre for Tobacco Control in Africa, Tobacco industry interference in Kenya: Exposing the tactics, January 2013, accessed April 2015
  6. Uganda National Tobacco Control Association, Shadow report on the status of the implementation of the World Health Organisation Framework Convention on Tobacco Control (WHO-FCTC) Articles 8 & 13 in Uganda – 2012, May 2013, accessed April 2015
  7. Center for Tobacco Control in Africa, Tobacco Industry Monitoring Regional Report for Africa, August 2013, accessed April 2015
  8. Cabinet Secretary for Health Kenya, The Tobacco Control Act 2007, The Tobacco Control Regulations, 2014
  9. P. Lopokoiyit, Finance Director BAT Kenya, Letter to Hon. Phyllis Kandie, Kenya Tobacco Control Regulation 2014 – Potential impact on East Africa Community (EAC) Principles and Obligations, 18 December 2014
  10. P.Patel, J.Collin, AB. Gilmore, “The law was actually drafted by us but the Government is to be congratulated on its wise actions": British American Tobacco and public policy in Kenya, Tobacco Control, February 2007, accessed April 2015
  11. Chief of Staff and Head of Public Service, Letter to Cabinet Secretary of the Ministry of Health, New Tobacco Regulations, 3 February 2015
  12. Kenya Bureau of Standards, Meeting Minutes, 20 January 2015
  13. C. Mwaniki, Egypt crisis hits Kenya as exports fall by Sh2 billion, 17 October 2013, accessed April 2015
  14. Kenya Association of Manufacturers, Sub-standard goods, accessed April 2015
  15. Kenya Association of Manufacturers, Kenya Tobacco Control Regulations 2014
  16. BL. Kaleve, Chairman, National TBT Consultative Committee, Invitation to attend TBT workshop in Naivasha on 13th -14th March 2012, 2 March 2012
  17. C. Anyika, Letter to Cabinet Secretary of the Ministry of Health, Request for information held by the state pertaining to the Tobacco Control Regulations 2014, 27 January 2015
  18. Director of Public Health, Ministry of Health, Kenya Tobacco Control Regulations 2014 – potential impacts on East African Community (EAC) principles and obligations, 27 January 2015
  19. Mastermind Tobacco (K) Limited, Letter to Cabinet Secretary of the Ministry of Health, Request for a meeting with parliamentary committees on delegated legislation, finance and health, 22 January 2015
  20. LRW. Mwago, Director for Internal Trade, Letter to the Ministry of Health, RE: Request for a meeting with parliamentary committees on delegated legislation, finance and health, 20 January 2015
  21. World Health Organisation, Guidelines for implementation of Article 5.3 of the WHO Framework Convention on Tobacco Control , accessed April 2015
  22. British American Tobacco Kenya, Petition no. 143 in the matter of the Tobacco Control Regulations 2014 between British American Tobacco Kenya Ltd and the Cabinet Secretary for the Ministry of Health, 14 April 2015
  23. C. Maina, BAT challenges new cigarette regulations on packaging from Ministry of Health, 16 April 2015, accessed April 2015