Tobacco firms beating laws to sell products, report says

A new report has accused tobacco companies of cutting corners to beat the tough laws controlling the use of their products.

The report notes that even though the government banned Lyft, an oral nicotine product in October 2020, a similar product under a different brand name had been introduced in the local market.

The report further revealed that the Kenyan market is littered with nicotine pouches which are against the Ministry of Health’s public health directive and in violation of the Tobacco Control Act.

“We have uncovered serious violations of the Kenya Tobacco Control Act in the introduction, promotion and continued sale of the highly-addictive nicotine pouches in Kenya,” the authors of the report drawn from Consumer Information Network, the Kenya Tobacco Control Alliance (KETCA), and the International Institute for Legislative Affairs (IILA) said during a recent press conference.

In Kenya, and the world over, oral nicotine products are becoming popular as tobacco firms re-invent and diversify their wares to entice more users. 

Nicotine pouches

Oral nicotine pouches contain either de-hydrated tobacco-derived nicotine or synthetic nicotine but no tobacco leaf, dust, or stem. 

They contain sweeteners and plant-based fibres. They are similar in appearance but do not contain tobacco.

Users place these pouches between the lip and gum, sucking on the content whereupon nicotine is absorbed into the bloodstream through the mucous membranes. 

The pouches were introduced in Kenya in July 2019 under the brand name Lyft but were stopped by Cabinet Secretary for Health Mutahi Kagwe in October 2020 because they were illegally registered by the Pharmacy and Poisons Board as a pharmaceutical product.

Nicotine pouches remain illegal in Kenya as per the Ministry of Health’s directive unless they fully comply with the Tobacco Control Act, just like other tobacco products on the market.

“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,” the report says, identifying a brand name which despite non-compliance with the ministry’s directive has been found to be sold.

According to the report, the tobacco industry supporting the introduction of nicotine pouches in Kenya is the assertion that they are less harmful than other conventional tobacco products (cigarettes) and that they would help to wean tobacco addicts off cigarettes as a part of Harm Reduction Therapy (HRT).

However, there is little or no independent research to support these claims by the manufacturers.

Health effects

The report further mentions that victims or users have confirmed various documented health effects such as headaches, nausea, sore mouth, gum irritation and disease, dizziness, and increased risk of tobacco products and nicotine addiction relapse.

“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 cardiovascular 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.

The report was produced through in-person interviews with representatives of various stakeholder entities in the tobacco control sector. 

The document outlines various instances of violation of the law beginning from the introduction of nicotine pouches in 2019.

Mr Joel Gitali, the chairman of Kenya Tobacco Control Alliance, argued that as the report shows, the interference by the tobacco industry is vast, whereas there are regulations that must be adhered to.

“This is impunity. Lyft was registered illegally and the CS declared it illegal but those who registered it continue to connive and find ways of going around the law to have them sold to our young people,” he added.

BAT-Kenya applied and had the Pharmacy and Poisons Board approve Lyft to be sold as a pharmaceutical product as per the Pharmacy and Poisons Board Act, despite the product not being a pharmaceutical item or a poison.

The Tobacco Control Act, 2007 defines a tobacco product as “composed, in whole or in part, of tobacco, including leaves and any extract of tobacco leaves intended for use by smoking, inhalation, chewing, sniffing or sucking and includes cigarette papers, tubes and filter.”

“This definition when interpreted in alignment with the objective(s) of the Act (and the FCTC tobacco products definition) covers oral nicotine pouches as these may contain tobacco extract i.e. nicotine extract. The pouches which are sucked when placed between the gum and lip also align to the methods of consumption encapsulated within the said definition,” says the law.

Unconventional technology

The WHO identifies novel tobacco products as those that employ new or unconventional technology, have been on the market for a limited period, are newly introduced in a given country, or are marketed with claims of reduced risks.

It is thus settled that oral nicotine pouches fall squarely within the ambit of tobacco products and are rightly governed by the above-stated Act and the regulations thereunder.

This irregularity was noted in October 2020 by Mr Mutahi, 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, the product sales were proscribed until the minister further noticed.

Also, the report says the company exploited the pandemic to promote sales of its products despite evidence they significantly increased victims’ risk of infection, getting severe Covid-19 leading to hospitalisation and increased mortality risk for patients.

BAT-Kenya then contributed Sh10.6 million to the Covid-19 kitty controlled by the government. After the donations in April 2020, tobacco products were listed as part of the essential goods by the Business Emergency Response Centre set up by a committee under the Ministry of Industrialisation, Trade and Enterprise Development to respond to issues affecting the businesses.

“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 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.

According to the report, 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, that is, an exemption from imposed excise duty for two years.

According to the Tobacco Control Act, 2007 (Sec. 12), the cabinet secretary in charge of Finance is mandated to implement tax policies and, where appropriate, 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 finance or any other public authority not to grant any incentives, privileges, benefits, or preferential treatment to the tobacco industry to establish or run their business. The request was declined. 

Advocacy campaign

Further, the report mentions that 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.

The report further mentions that the industry has persistently pushed the unproven, likely false narrative of these products as less harmful than others. It says there is a need for enhanced laws and regulations (tobacco control laws) to curb loopholes exploited by the industry to the detriment of the regulators, stakeholders, and the public.

“We also advocate for stringent application or amendment of election/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.