A tobacco farmer in Migori District, South Nyanza. The new laws will govern the manufacture, sale and advertising of tobacco products. PHOTO | FILE
What you need to know:
The law was supposed to come into force on June 5, 2015, but British American Tobacco Kenya Ltd (BAT) contested its implementation in court.
The Tobacco subsector is set for major changes as new regulations take effect.
The new laws will govern the manufacture, sale and advertising of tobacco products.
The law will be enforced after six months (around September) so as to give players appropriate time to adjust to the requirements.
Some players in the industry got a sigh of relief when the court nullified some sections of the Tobacco Control Regulations 2014 which were found to be unconstitutional.
The law was supposed to come into force on June 5, 2015, but British American Tobacco Kenya Ltd (BAT) contested its implementation in court. The court on June 4, a day before enforcement of the law, gave interim orders to restrain the implementation pending hearing and determination of BAT’s petition.
In a judgment delivered late last month, Lady Justice Mumbi Ngugi said the Tobacco Control Act has very clear objectives of safeguarding individuals and the public from the dangers posed by consumption of tobacco.
According to the Act, consumption of tobacco has been implicated in causing debilitation, disease, and death.
“The regulations which are contested in this petition are intended to safeguard the public, those who smoke and those who do not, and to provide certain information with regard to the contents of tobacco products,” explained Judge Ngugi.
The judge also allowed the enforcement of the Tobacco Control Fund which was contested, saying that the reason behind the establishment of the fund was to assist the State deal with the adverse effects of tobacco consumption.
Consultative process
The BAT had also complained about the amount of the compensatory contribution, which is pegged at two per cent of the value of the tobacco products manufactured or imported by the manufacturer or importer, saying it is vague and uncertain.
The judge said the solatium compensatory contribution was arrived at through a process which was consultative and involved all stakeholders, including BAT.
BAT had argued that the regulations discriminate against the tobacco industry by singling it out and limiting its engagement in legitimate commercial engagements.
The court noted that the players in the tobacco industry are in a peculiar industry, whose products have scientifically been implicated in debility, disease and death, and therefore it is within the mandate of the Cabinet Secretary of Health to make regulations that will limit interaction between such an industry and public officers.
The court said the intention behind this limitation was to ensure effective enforcement and implementation of the tobacco control laws.
Equally contested was the Regulations on Packaging and Labelling, but the court observed that the legislative intention behind the regulations was to regulate advertising of tobacco products and to ensure that consumers are fully aware of the nature and content of the tobacco products that they consumed
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