Enforcement of Tobacco Control Laws in Kenya

The only measure for which Kenya is recognised as having attained the highest level of achievement in terms of compliance is tobacco advertising, promotion and sponsorship.

The tobacco control measure with the lowest level of compliance in Kenya is the ban on sale of single cigarette sticks.

Kenya ratified the World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC) in 2004. The WHO FCTC is the first international agreement to address the issue of tobacco use.

Following the FCTC ratification, Kenya  adopted its first Tobacco Control Act in 2007 and Tobacco Control Regulations in 2014.

Compliance refers to the fulfillment of tobacco control obligations/requirements by members of the public, tobacco industry players, and other regulated entities.

Enforcement refers to the measures that the government takes to ensure compliance, including actions to prevent/deter offenses and respond to breaches of the law. Enforcement is often a series of escalating interventions/sanctions, starting with persuasion, warnings, civil penalties, criminal penalties, license suspension, and license revocation.

This page provides information about the degree of enforcement in Kenya, the level of local compliance with existing tobacco control laws, and the successes and challenges with enforcement.

Kenya has adopted various tobacco control policies to fulfill its obligations under the WHO FCTC, as outlined in the timeline below.


The FCTC obliges Parties to adopt  tobacco control measures, including:

  • Prohibitions on tobacco advertising, promotion, and sponsorship
  • Protection of individuals from secondhand tobacco smoke
  • Implementation of higher tobacco taxes
  • Placement of graphic health warnings on all packages of tobacco products
  • Prevention of sales to and by minors
  • Regulation and disclosure of product contents and emissions
  • Provision of tobacco cessation services, and
  • Promotion of alternative livelihoods for tobacco farmers.
2004
2007
2008
2010
2012
2014
Sept 2016
2017
2018
2019
May 2020
2021
Ratification of the WHO FCTC
Adoption of the Tobacco Control Act
Implementation of ‘Round 1’ of health warnings (text-only warnings)
National Tobacco Control Action Plan 2010-2015
Tobacco Control Board Strategic Plan 2012-2017
Adoption of Tobacco Control Regulations
Partial implementation of the first three of the 15 Graphic Health Warnings
Adoption of National Cessation Guidelines and Ban on shisha
Partial implementation of GHWs
Adoption of National Tobacco Control Strategy 2019 – 2023
Ratification of the Illicit Trade Protocol
Draft National Guidelines on Packaging and Labeling of Tobacco and Tobacco Products

Note: This timeline does not contain information on changes to tobacco tax and illicit trade policy. These are contained in the Tobacco Tax Page

In November 2014, the tobacco industry filed a lawsuit challenging the Tobacco Control Regulations 2014. The regulations were subsequently suspended pending the hearing and determination of the lawsuit. In September 2016, the regulations dealing with GHWs were partially implemented (three out of 15 GHWs), with another three warnings implemented in 2018.  In November 2019, the litigation was dismissed by the Supreme Court, thereby allowing for full implementation of the regulations and remission of the 2% solatium compensatory contribution.

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Enforcement Infrastructure in Kenya


Article 5 of the FCTC mandates a comprehensive multi-sectoral approach to the implementation of tobacco control measures. This requires high level political commitment and a whole of government approach.

Though the Ministry of Health is the main agency responsible for tobacco control policy development and implementation in Kenya, other government agencies and departments bear some responsibilities as outlined in the table below:

The Presidency• Ensure and sustain high-level political commitment to tobacco control and implementation of the WHO FCTC and related instruments
National Assembly and Senate• Provide political commitment and support for the adoption of effective tobacco control policies and legislations
Ministry of HealthServe as the focal point for implementation of the WHO-FCTC and its instruments. This includes:

• Coordinating  multi-sectoral tobacco control action (serve as the secretariat for the national coordination mechanism and any Technical Working Groups (TWGs) established thereunder)
• Co-chairing the National Tobacco Control TWG under the Non Communicable Disease Inter-Sectoral Coordination Committee (NCD-ICC).
• Leading  the  development, coordination, implementation, and enforcement of tobacco control policies and legislations
• Monitoring and evaluating implementation of the FCTC and Tobacco Control Act  
• Mobilizing resources 
• Facilitating capacity building for  other government ministries and agencies 
• Establishing and coordinating  tobacco cessation services 
• Undertaking public awareness campaigns on the dangers of tobacco use and outlining legal provisions for compliance
Kenya Bureau of Standards• Contribute to the development of policies, legislations, standards, and guidelines for the regulation of tobacco products 
• Test tobacco product contents and emissions
• Guide the packaging and labeling of tobacco products
Ministry of Investments, Trade and Industry• Monitor and provide information on tobacco trade and related activities 
• Protect obligations to the WHO FCTC in bilateral and multilateral trade and investment agreements
Attorney General• Provide legal  advice on the development and interpretation of tobacco control legislations and regulations 
• Provide support for enforcement of and/or compliance with tobacco control laws and regulations 
• Protect obligations to the WHO FCTC in bilateral and multilateral agreements 
• Provide support in negotiation of further FCTC Protocols
Ministry of Foreign Affairs• Monitor and provide information on bilateral and multilateral agreements affecting tobacco control 
• Facilitate ratification of the WHO FCTC and its Protocols 
• Provide support for compliance with requirements of the WHO FCTC and its Protocol, as well as regular reporting

Source: WHO Regional Office for Africa 2015, National Coordination Mechanism for Tobacco Control: A Model for the African Region, as supplemented with roles of the respective Ministries from their websites.

The Tobacco Control Act and the 2014 regulations provide for the following enforcement officers: public health officers appointed under the Public Health Act (Cap. 242), medical officers of health, customs officers, police officers, administration police officers, prisons officers, local authority inspectorate officers, and Kenya forest rangers. These officers have the power to enter any place where tobacco or tobacco products or any ingredients used in their manufacture or any information related thereto are produced, manufactured, tested, packaged, labeled, promoted, or sold. They also have the power to inspect premises, examine, test, seize, and store any articles they suspect have been used to commit an offense, and arrest and prosecute individuals for offenses under the Tobacco Control Act.

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Best Practices in Enforcement


Enforcement of and compliance with tobacco control legislation is informed by: the FCTC, the FCTC Guidelines adopted by the Conference of Parties and other relevant decisions of the Conference of Parties, domestic tobacco control laws, and other domestic laws on civil and criminal procedure.

An effective tobacco control enforcement mechanism has several characteristics

:

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Enforcement Challenges


While there is strong public support for tobacco control laws, the level of enforcement by the government is perceived to be low.


Tobacco Users’ and Non Users’ Opinions about Government Responsibility on Enforcement of Tobacco Control, 2018


0%10%20%30%40%50%60%70%80%90%100%Percentage (%)Support a total ban on tobacco products within 10 years with cessation supportAgree that the government should do more to tackle tobacco harmAgree that tobacco products should be more regulated

Source: ITC, 2020


Over 80% of respondents to the 2018 International Tobacco Control (ITC) survey agreed that tobacco products should be more tightly regulated, while over 88% supported a total ban on tobacco products within 10 years if the government provided cessation assistance.

  

Despite Kenya’s adoption of tobacco control policies since 2007, enforcement faces key challenges, including industry interference, inadequate resources (financial and human), weak enforcement capacity

, lack of coordination and unclear mandates of the principal institutions involved in tobacco control efforts, and limited awareness by non-health state actors on their obligations under Kenya’s tobacco control laws.

Interference from tobacco industry players is one of the key challenges hindering the enforcement of tobacco laws in Kenya. These players often challenge the implementation of tobacco control policies or use underhanded tactics like bribery to slow enforcement.

Kenya is listed as one of the countries with the highest level of achievement in enforcement of bans on tobacco advertising, promotion, and sponsorship.

However, advertising at points of sale (through use of brand colors) and on social media platforms is still prevalent.

Article 13.2 of the FCTC requires each Party to comprehensively ban all forms of tobacco advertising, promotion, and sponsorship, including cross-border advertising. Kenya’s comprehensive ban on tobacco advertising promotion, and sponsorship is contained in part IV of the Tobacco Control Act.

In Kenya, compliance with the ban on tobacco advertising, promotion and sponsorship increased between 2012 and 2018. In 2018, only 8% of ITC respondents noticed adverts designed to promote tobacco consumption versus 11% of respondents in 2012. However, there was some evidence that enforcement of existing restrictions needed to be greater at entertainment, media, and retail outlets. In 2018, about 22% of respondents observed tobacco use in entertainment media in the previous six months, which has been linked to youth smoking.


Respondents Who Noticed Tobacco Products Being Advertised in Various Venues by Wave


0%2%4%6%8%10%12%14%16%Percentage (%)Stores where cigarettes are soldShop windows/ Inside shopsRadioBarsNewspapers/ MagazinesSchools; Colleges & UniversitiesTelevisionPublic TransportCinema hallsRestaurants/ Tea stalls

Source: ITC, 2020


Point-of-sale tobacco advertising, including product stacking and displays, is banned in Kenya. However, a 2017 study in Nairobi, Kakamega, Vihiga, and Tharaka Nithi counties found that 392 out of 400 vendors still had tobacco product displays. These displays took various forms, including packs laid out on trays, tables, or other surfaces, organized shelves, hanging displays, or illuminated displays.

Section 25 of the Act prohibits advertising on “any medium of electronic, print, or any other form of communication.”

However, the tobacco industry has found ways to advertise  products to the youth through social media sites like Facebook and Twitter. Social media is particularly used to market nicotine pouches. The social media sites do not have effective means of verifying age; they also allow for deliveries, breaching the law on sale to minors. The adverts for nicotine pouches are also accompanied by adverts and price lists for cigarettes as related products.

The Act further prohibits the promotion of brand elements such as color – in other words, a cigarette manufacturer such as British American Tobacco should not project or display its brand colors in any location. However, it is still common to see brand colors in boxes and displays in roadside shops. For example, street vendors that use branded umbrellas to shield themselves from the sun may have removed or patched over the obvious textual advertising. However, the color of the umbrellas still serve as subtle reminders of what is on sale.

Despite good compliance in most public offices, government buildings, and other workplaces, smoking in public continues to be observed in the hospitality/entertainment sector. The provision for designated smoking areas weakens Kenya’s smoke-free policies and hinders universal protection against secondhand tobacco smoke.

The Guidelines to Article 8 of the FCTC

require 100% smoke-free public places. Section 33 of the Tobacco Control Act, 2007 bans smoking in public places (which are defined as any indoor, enclosed, or partially enclosed areas that are open to the public, including workplaces, and health, educational, and recreational institutions). However, smoking is permitted in designated areas. The definition of a designated smoking area in Section 33 provides for ventilation, which has been proven to be ineffective in protecting from exposure to secondhand smoke. Furthermore, the areas set aside as designated smoking areas do not meet the specifications set out in the law and do not protect the public near them from exposure to secondhand smoke.

The 2014 regulations expanded the areas in which smoking is banned to include private vehicles with children on board and streets, walkways, and verandas adjacent to public places. Kenya’s smoke-free provisions are comprehensive, save for the designated smoking areas.


Respondents Who Smoked or Witnessed Smoking in Public Places by Wave


Smokers Who Smoked in Public Places

WorkplaceBarsRestaurantsPublic Transport0%20%40%60%80%Percentage (%)15%76%12%1%28%65%8%1%

Respondents Who Witnessed Smoking in Public Places They Visited

WorkplaceBarsRestaurantsPublic TransportHospitals0%20%40%60%80%Percentage (%)11%70%8%4%1%16%57%7%4%3%

Source: ITC, 2020


The ITC survey revealed that compliance with the ban on public smoking was high in public transport vehicles, hospitals, and restaurants. Conversely, compliance was low in bars and private workplaces. In 2012, 76% of smokers stated that they smoked in bars, whereas in 2018 65% of smokers reported that they smoked in bars. In 2012, 70% of respondents who visited a bar witnessed smoking, whereas in 2018 57% of respondents who visited a bar witnessed smoking.

Enforcement at the county level still faces challenges. In Nairobi county, the smoke-free law has largely been enforced in the central business district. However, in recreational areas such as Uhuru Park and in street markets within residential areas, public smoking still occurs during the day and at night given the absence of enforcement officers.

Enforcement at night requires presence of the police to ensure security for enforcement officers which is not routinely provided or financially provided for.

A 2018 study carried out in Nakuru county found that roughly 253 out of 264 licensed liquor establishments (96%) permitted smoking within their premises. The required ‘no smoking’ signs were present in 42% of restaurants, 50% of night clubs, and 58% of bars.

Another 2019 study surveyed 384 bars and restaurants in Nakuru and Kisumu counties. The study found that smoking took place in 43% of the bars and restaurants. Approximately 49% of the bars and 58% of the restaurants did not have ‘no smoking’ signs.

Though the graphic health warnings adopted in 2014 meet the minimum requirements outlined in the FCTC, they fall short of international best practices with regard to size and rotation (i.e., different warnings displayed on different packs). Kenya ranks 128 out of 206 countries worldwide that have implemented GHWs on cigarette packs.

Cigarette Package Health Warnings Ranking


Hovering on each country will reveal the cigarette package health warnings ranking.


The lower the score, the lower the level of compliance

  • Average Front/Back Score|
  • 0 - 30
  • 31 - 40
  • 41 - 50
  • 51 - 60
  • 61 - 70
  • 71 - 80
  • 81 - 90
  • 91 - 100
  • No Data
    Kenya - Average Score: 40
    Angola
    Burundi
    Benin
    Burkina Faso
    Botswana
    Central African Republic
    Côte d'Ivoire
    Cameroon
    DRC
    Comoros
    Cabo Verde
    Djibouti
    Algeria
    Egypt
    Eritrea
    Ethiopia
    Gabon
    Ghana
    Guinea
    Gambia
    Guinea-Bissau
    Equatorial Guinea
    Liberia
    Libya
    Lesotho
    Morocco
    Madagascar
    Mali
    Mozambique
    Mauritania
    Malawi
    Namibia
    Niger
    Nigeria
    Rwanda
    Sudan
    South Sudan
    Sierra Leone
    Somalia
    Eswatini
    Chad
    Togo
    Tunisia
    Tanzania
    Uganda
    South Africa
    Zambia
    Zimbabwe
    Kenya

    Source: Canadian Cancer Society, 2023

    Health warnings on tobacco product packaging are an effective method of spreading health information since every tobacco user gets to see the images every day.

    Article 11 of the FCTC requires tobacco packages/labels to bear large, clearly visible, and legible health warnings. These warnings, which must be rotated, should cover 50% or more of the tobacco package. The warnings may also take pictorial form. The Guidelines to Article 11 of the FCTC recommend that the larger the graphic health warnings the greater the impact. In addition, the health warnings should address a range of issues that are tailored to gender, age, or particular groups in the population.

    The guidelines further recommend that multiple warnings should be in circulation at any given time. The warnings and messages should also be changed from time to time, and plain or standardized packaging should be considered as well.

    By 2018, GHWs on cigarette packs were in place in 117 countries and jurisdictions worldwide.

    Sixteen African countries, including Kenya, have implemented GHWs. The 2007 Kenya Tobacco Control Act and the Tobacco Control Regulations 2014 provide for a set of 15 GHWs in both English and Kiswahili covering not less than 30% of the total surface area of the front panel and 50% of the total surface area of the rear panel, and both located on the lower portion of the package directly underneath the cellophane or other clear wrapping. In addition, the messages in circulation should be changed after every one year (12 months), with the 12 month period ending on 31st December of every year.

    However, due to a legal challenge against the 2014 regulations from the tobacco industry, only three out of 15 of the GHWs were implemented in 2016. An additional three of the approved GHWs were implemented in 2018 (leaving nine of the approved GHWs unimplemented). In addition to the GHWs, a textual warning sign was printed on the packs.

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    Impact of Kenya’s Graphic Health Warnings


    Since 2007, Kenya has moved from text warnings to GHWs covering 30% of the front and 50% of the back of the surface area of tobacco packets. The initial impact of this change on smokers perceptions and behavior has waned over time,

    necessitating newer, larger GHWs.

    In 2012, 63% of tobacco users and 90% of non-users thought that more health information should be displayed on cigarette packages as existing text warnings were inadequate.

    Between 2012 and 2018, the change from text to three GHWs had an initial impact on smokers. For example, 72% of smokers in 2018 reported that they noticed the health warnings on the packs whenever they smoked compared to 64% in 2012. The implementation of GHWs also influenced the behavior of smokers. In 2018, 32% of smokers and 10% of smokeless tobacco users avoided the warnings (by either  covering them up, keeping them out of sight, using a cigarette case, avoiding certain warnings, or any other means), while 26% of smokers and 11% of smokeless tobacco users had given up smoking because of the GHWs. Additionally, when compared to text warnings, GHWs proved more likely to influence smokers to reconsider the negative health effects of smoking. In 2018, 38% of smokers and 21% of smokeless users reported that they were more likely to quit.


    Impact of Health Warnings on Cigarette Packages Among Smokers in Kenya, by Wave


    0%10%20%30%40%50%60%70%80%Percentage (%)Health warnings stopped smokers from having a cigarette at least onceSmokers made an effort to avoid health warningsHealth Warnings made smokers “a lot” more likely to quitSmokers read health warnings closely “often” or ”regularly”Health warnings made smokers think about the health risks of smokingHealth warnings led smokers to think about quittingSmokers notices health warnings “often” or “whenever they smoke”

    Source: ITC, 2020


    However, a review in 2018 revealed that the three GHWs in circulation had design flaws that limited their impact. Specifically, 43% of the respondents who were smokers perceived the GHWs as unrealistic or mythical, 15% described them as not convincing, and 13% said they were only meant to instill fear among smokers. Of the three GHWs in circulation, 32% of respondents recalled the images for mouth cancer, while only 13% of respondents recalled the images for cancer and impotence, respectively. Furthermore, a disconnect between the images and the messages they are supposed to convey was observed (e.g., many respondents interpreted the image for impotence to mean divorce, whereas the image for mouth cancer was interpreted as tooth decay or tooth loss and not mouth cancer).

    In 2021, the Ministry of Health prepared the draft “National Guidelines for Packaging and Labeling of Tobacco and Tobacco Products.” These guidelines proposed increasing the size of GHWs from 30% on the front and 50% on the back to 80% on both the front and back panels of tobacco packaging. These guidelines have not yet been implemented. The current health warnings fall short in terms of rotation and are smaller than what is proposed in the new national guidelines. Other African countries such as Benin have health warnings covering 90%

    of the front and back of tobacco products.

    Despite a ban on the sale of single sticks, the majority of smokers in Kenya (82%) last purchased cigarettes in loose (single) form rather than in packets.

    The sale of single sticks is prevalent in many countries, especially low- and middle-income countries.

    Even though section 18(1) of the Tobacco Control Act prohibits the sale of cigarettes, except in packages containing at least 10 cigarettes, single sticks are still readily available in many parts of the country.

    Single sticks are affordable to the youth and others with limited resources as they are perceived to be cheaper than buying an entire pack.

    At the same time, traders prefer to sell single sticks as they are more profitable than selling whole packs. In 2019, a pack of 20 Sportsman cigarettes (the most popular discount cigarette brand) cost Ksh 150 whereas a single stick cost Ksh 10.

    Reports also indicate that stalls sell single cigarettes within a 250-meter radius of primary schools across the country, in violation of section 15(1) and section 16(1) of the Tobacco Control Act.

    Roughly 80% of these stalls fail to post warning signs prohibiting the sale of cigarettes to people under the age of 18.

    The ban on marketing and consumption of shisha in 2017 was initially successful within Nairobi County.

    However, media reports in 2022 indicate that shisha marketing and consumption is still occurring.


    Compliance With Shisha Ban by Area in Nairobi County


    0%10%20%30%40%50%60%70%80%90%100%Percentage compliance with shisha ban (%)ParklandsMathare Valley & PipelineLangataEastleighKasaraniWestlands

    Source: Fukuda, S et al, 2023


    The use, import, production, sale/offer for sale, marketing, and distribution of shisha, as well as the encouragement or enablement of its use, were outlawed in Kenya in 2017.

    A 2021 study done in Nairobi county showed initial compliance with the ban, with 82% of the locations visited being in compliance. Shisha smoking was observed in 17% of venues (restaurants, bars, and nightclubs), and shisha equipment was displayed in 2% of all places visited. Of the various venue types, 95% of restaurants, 80% of bars, and 76% of nightclubs were compliant with the ban.

    However, media reports in 2022 indicate that shisha equipment is now seen at bars and nightclubs in Nairobi, and shisha smoking is popular among socialites and sportspersons. Shisha is either sold by the club owner or by third parties allowed to sell to patrons (with profits shared with the club owners). Shisha equipment can also be ordered from online stores like Kilimall

    as well as Facebook and Instagram; equipment can also be purchased from khat sellers in Eastleigh. Fruit-flavored brands are very popular and, depending on location, two to five friends can share a shisha pot for between KSh 500 and Ksh 3,500. The renormalization of shisha marketing and consumption is attributed to political interference with enforcement.

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