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

Kenya’s efforts to 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 and other African countries as a frontier area for profit growth.¹ Consequently legislation in the country has repeatedly been thwarted by the tobacco industry.²³

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.⁴ 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.

In 2014, Kenyan policymakers proposed new regulations to strengthen the evidence-based framework established by the existing Tobacco Control Act.⁵ The Tobacco Control Regulations 2014 were stalled in the Kenyan courts, through repeated legal challenges by British American Tobacco (BAT) until November 2019.

Tobacco Industry Opposing Regulations

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

* the imposition of a financial contribution of 2% of the value of manufactured and imported tobacco products. This 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 article 5.3 of the World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC)⁶⁷⁸

Industry Tactics to Interfere with the Regulations

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

Legal Challenges

On 14 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. ⁹¹⁰ When the High Court ruled against BAT, the tobacco company took the case to appeal in 2016, and then to the Supreme Court in 2017. On 26 November 2019, the Kenyan Supreme Court, the highest legal authority, ruled to uphold the regulations.¹¹¹²

• For more information on BAT court cases against the Kenyan government, see our profile page on Kenya- Country Profile
• For further details of BAT’s legal challenges see Kenya- Timeline
• 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

Lobbying By Government Officials

On 3 February 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.¹³

Engaging with Policymakers

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,”¹⁴ declaring their objections to the regulations and requesting meetings in person to discuss alterations.¹⁵¹⁶ As a signatory to the FCTC, there is meant to be limited, supervised interaction between the industry and government officials.⁸

Working Through Third 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
That same month, January 2015, the Technical Barriers to Trade (TBT) Committee in Kenya held a meeting to discuss the 2014 draft regulations. The meeting was attended by two staff members of BAT as well as representatives of the Kenya Association of Manufacturers (KAM),¹⁸ of which BAT is a member.¹⁹²⁰ At the meeting, KAM gave a presentation offering the exact same arguments that tobacco companies have used in their correspondence opposing the regulations.²¹

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”.²²

After the Nairobi City Council Tobacco Bill 2018 was tabled, statements made by some Kenyan business organisations mirrored many of those used by BAT, in Kenya and elsewhere.²³ In February 2019, BAT Managing Director Beverley Spencer-Obatoyinbo, described the bill as a case of “overregulation”, saying that point of sale restrictions were “extreme” and would have “unintended consequences” for small businesses, “like harassment and arrests”.²⁴ The following month, after a government run engagement event, the CEO of the Retail Association of Kenya (RETRAK) referred to the targeting of small businesses and “unintended consequences”, adding that the proposed bill was more about “addressing a shortfall in tax collection” than public health.²⁵ The acting CEO of the Nairobi branch of the Kenya National Chamber of Commerce stated that the bill had “the potential to increase illicit trade and sale of substandard goods, therefore posing a huge problem for the industry and the country at large.”²⁶

These arguments are all commonly used by the tobacco industry to undermine tobacco control measures, but are not supported by scientific evidence (follow the links for more information):

• that they will impact unfairly on small businesses
• that they are focussed more on increasing revenue than on public health²⁷
• that they will lead to an increase in tax evasion and illicit trade

(BAT used similar arguments around illicit trade and tax evasion in response to the announcement of government plans to increase tobacco taxes in 2019. Although in this case the company said that the proposals threatened their own business. See Kenya- Country Profile)²⁸²⁹
The Nairobi County Tobacco Control Bill was passed on its 3rd reading in June 2019.

See Kenya- Country Profile for more information.

TobaccoTactics resources point to further evidence on how the tobacco industry use third parties to help get their message out and lobby policy makers by, for example, building alliances with business associations.

TobaccoTactics Resources

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

• Africa
• Kenya- Country Profile
• Kenya- Timeline: Industry Interference with the Tobacco Control Regulations 2014
• Kenya- BAT’s Tactics to Influence Track and Trace Tender

Additional Resources

This piece was originally written by the TCRG for The Guardian‘ Sustainable Business website and was published on 2 March 2015.
This page was updated in December 2019 in the light of Kenyan court activity since 2015, and the new Tobacco Control bill introduced in Nairobi in 2018, which passed into law in 2019.