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 study, the pouches were introduced in Kenya in July 2019 under the brand name Lyft but were stopped by Cabinet Secretary for Health in October 2020 because they were illegally registered by the Pharmacy and Poisons Board 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.

However, the report shows 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.

"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

It 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 organisations bolstered by input from the Ministry of Health, the National Parents' Association, media, victim/user groups, academia and research entities, youth group representatives and other key health stakeholders in the civil society.

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

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

However,victims or usershave confirmed variousdocumented health effects such as headaches, nausea, sore mouth, gum irritation and disease, dizziness, increased risk of relapse to tobacco products and nicotine addiction.

"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.

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

BAT-Kenya applied and had the Pharmacy and Poisons Board approve Lyftto be sold as pharmaceutical productper 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.

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."

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 company exploited the pandemic to promote sales of its products despite evidence 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 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.

"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 the 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 healthpolicy andregulatory mechanisms,"said Thomas Lindi,KETCA's National Coordinator.

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 i.e. 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 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 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 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/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.

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