Individuals promoting nicotine products including pouches and vapes could be jailed for up to three years, according to proposed amendments to the Tobacco Control Act.
The act was enacted in 2007 to fight mostly cigarettes, but the country is now facing a torrent of nicotine-based products that are highly addictive and toxic.
Some have been linked to health hazards such as burst lungs and abortion.
The new restrictions are contained in the Tobacco Control [Amendment] Bill, 2024, sponsored by nominated Senator Catherine Mumma.
“The Bill amends the definition of the word ‘smoking’ to include the inhalation of products other than tobacco, that is, to include inhalation of synthetic nicotine whether by electronic means or ignition. The Bill also amends the definition of ‘tobacco product’ to include synthetic nicotine,” Mumma said.
Influencers use social media to promote synthetic nicotine products to entice youths and schoolchildren.
Some activists even misleadingly call them 'safer alternatives' to smoking.
“Offenders face a fine of not more than five hundred thousand shillings or imprisonment for a term of not more than three years or both,” Mumma said.
Mumma’s Bill was first read in the Senate on August 6.
The Senate Standing Committee on Health is expected to facilitate public participation and present the public views and recommendations within 30 days.
Nicotine pouches, vapes and e-cigarettes were pitched to Kenyan regulators to help adults quit smoking. The Pharmacy and Poisons Board. registered Lyft.
But a task force formed by the Ministry of Health last year concluded they should either be banned or tightly regulated.
Kenya’s increasingly tough stance on new nicotine products comes after a sharp rise in addicted youth, partly driven by the dizzying array of fruity and sweet flavours on offer.
Senator Mumma said the Bill explicitly bans sweet flavours in the products.
“A person shall not produce or supply tobacco products containing vitamins or other additives that create the impression that a tobacco product has a health benefit or presents reduced health risks,” one amendment says.
Other banned additives are caffeine and deceptive colouring.
The Bill empowers the Cabinet Secretary for Health to ban any product that does not conform to the law.
This is important because the tobacco industry successfully questioned the powers of Mutahi Kagwe as Health CS when he banned Lyft in October 2020.
Sellers of illegal products face a penalty of a fine of not more than Sh1 million or imprisonment for not more than two years or both.
This is not the first time there has been an attempt to open the Tobacco Control Act.
An Omnibus Amendment Bill is also expected in Parliament, containing changes similar to those in Mumma’s bill.
The World Health Organization has twice sponsored the Ministry of Health officials to draft amendments, but the outcomes were never made public.
Just like cigarettes, the new products must also come with a clear warning that the sale and use of the products by persons under 18 is prohibited, according to Mumma’s bill.
There should also be clear warnings about the specific health risks associated with the products, and a warning that such a product is not a safe alternative to traditional tobacco products and still poses health risks.
In 2021, the WHO said there was already growing evidence new nicotine delivery products cause heart and lung health complications and poor brain development in adolescents.
Because they harm the lungs, they also increase the risk of tuberculosis infection and lead to more serious cases of TB deaths.
The WHO said at that time, 32 countries had banned the sale of electronic nicotine delivery systems.
A further 79 had adopted at least one partial measure to prohibit the use of these products in public places, prohibit their advertising, promotion and sponsorship, or require the display of health warnings on packaging.
“This still leaves 84 countries where they are not regulated or restricted in any way,” said the biannual WHO Report on the Global Tobacco Epidemic 2021.
WHO’s director of health promotion Dr Rüdiger Krech accused cigarette manufacturers, who are the main producers of such products, of taking advantage of the public because nicotine products are difficult to regulate.
“These products are hugely diverse and are evolving rapidly. Some are modifiable by the user so that nicotine concentration and risk levels are difficult to regulate,” he said.
The Kenya Tobacco Control Alliance has many times called on the government to ban nicotine pouches and electronic cigarettes.
Other lobbies, such as the International Institute for Legislative Affairs and the National Taxpayers Association, have also criticised the government’s leniency on products already well proven to be harmful.