Tobacco Industry Interference
Tobacco industry interference in the development and implementation of tobacco control policies in Kenya has been increasing from 1990 to date.
The legal provisions to prevent industry interference that were adopted in Kenya in 2014 have not been comprehensively implemented and more should be done to ensure compliance.
Tobacco kills approximately 12,000 Kenyans per year and costs the economy KES 3 billion annually in healthcare expenditure and indirect costs associated with lost productivity due to early mortality and morbidity.
Historically, tobacco control efforts have been opposed by the tobacco industry.
This page provides information on the tactics used by the tobacco industry in Kenya to interfere with policy development and implementation, compares the level of interference in Kenya against that in other African countries, describes the tobacco industry players and those who represent their interests, demystifies common tobacco industry myths and provides recommendations on how to address industry interference.
Kenya is currently ranked 8th out of 80 countries participating in the Global Tobacco Industry Interference Index, with a score of 39.
Tobacco Industry Interference (T.I.I.) Index
The Global Tobacco Industry Interference Index measures how governments are implementing Article 5.3 of the WHO FCTC and its Implementation Guidelines, based on civil society responses to a questionnaire using information from publicly available sources.
Data from the Global Tobacco Industry Interference survey covering 2019, 2020 and 2021, suggest that tobacco industry interference in Kenya increased between 2019 and 2020.
The tobacco industry uses various tactics to oppose, delay, and disrupt the adoption and implementation of tobacco control policies.
Tobacco Industry Interference Tactics
The industry’s litigation against tobacco control laws has caused delays in policy implementation.
In 2006, British American Tobacco Kenya and Mastermind Tobacco Kenya challenged a ban on smoking in public,
Interference in policy
Interference in policy development and implementation
Interference in policy development and implementation has led to watered down legislative provisions.
In 2015 the Kenya Revenue Authority (KRA) adopted a flat-rate tax system on cigarettes of KES 2.50 per cigarette which contributed to a 17% decrease in tobacco consumption. Mastermind Tobacco Kenya Ltd lobbied against this measure through media advertisements that claimed that the flat rate benefitted their main competitor, British American Tobacco. Consequently, in 2017, the National Treasury Cabinet Secretary ordered the KRA to revert to the old tiered excise tax system.
Use of Corporate Social Responsibility CSR
The tobacco industry uses CSR to portray itself positively and market its products and brands.
In 2010, after tobacco farmers began to diversify from tobacco farming, British American Tobacco Kenya (BATK) launched an insurance scheme for tobacco farmers in partnership with UAP Insurance Kenya and Chancery Wright.
Discrediting proven science
Discrediting proven science
The tobacco industry has attempted to dilute anti-tobacco public health messaging through sponsoring research that understates the health impact of tobacco use.
British American Tobacco Kenya (BATK) funded a research project titled “Epidemiological study into the relationship between smoking and heart disease” by Professor K. Ojiambo, who at the time was serving as the head of the Cardiology Department at the School of Medicine in the University of Nairobi.
Their motivation for the project was to develop a friendly association with one of Kenya’s leading medical specialists, gain access to medical thinking at the highest level, be seen to be conducting their business in a highly responsible way, and use the research results to counter some of the wilder allegations about tobacco-related disease epidemics in developing countries.
Receiving benefits or incentives
Receiving benefits or incentives
The tobacco industry seeks incentives from the government to create a favourable business environment for itself.
LYFT, a new smokeless oral tobacco product by British American Tobacco Kenya (BATK), was introduced to the market in 2019.
The Cabinet Secretary for Health has since revoked this registration and LYFT is now subject to similar tobacco control measures as other tobacco products.
Unnecessary interactions with the tobacco industry
The tobacco industry seeks opportunities to be seen in public with prominent government officials so that it can be portrayed in a positive light.
In 2019, during the Kenya Exporter of the Year Awards (which is a project of a state agency, the Kenya Export Promotion Council), the then Deputy President of Kenya, Dr. William Ruto, together with the Cabinet Secretary for the Ministry of Industry, Trade, and Cooperatives, the Hon. Peter Munya, attended the Gala Dinner where BAT won the Solid Rock Commendation (Lifetime Achievement) award.
The tobacco industry makes financial contributions to political parties, political candidates and government officials to influence tobacco control policy decisions.
In an attempt to influence the choice of a track and trace system intended to control illicit trade (in favour of Codentify), British American Tobacco Kenya (BATK) made payments amounting to USD 28,749 to sources within the Kenya Revenue Authority and USD 38,645 to former Kenyan Justice Minister Martha Karua, who was running a presidential campaign at the time in exchange for intelligence.
Conflicts of interest
Conflicts of interest / revolving door
Conflicts of interest are created by appointing people who serve or have served in the tobacco industry or have represented its interests in strategic positions in government. This gives the TI access to policy makers.
Betty Maina, former Chief Executive Officer of the Kenya Association of Manufacturers (recently served as the Cabinet Secretary in the Ministry of Industrialisation, Trade and Enterprise which declared tobacco as an essential product during the COVID-19 pandemic, despite the relationship between tobacco use and severe COVID-19 outcomes.
The tobacco industry in Kenya uses front groups to oppose tobacco control legislation, sway opinions on the health impact of tobacco use, and argue the impact of tobacco regulation on business, trade, investment, and farmer welfare.
Because of the proven harmful nature of its product, and its vested commercial interest in the outcomes of any policies affecting its product, the tobacco industry has lost credibility with the public and policymakers. It therefore uses seemingly independent and “credible” third parties to communicate its pro-tobacco and anti-tobacco-control arguments.
As the harms from traditional tobacco products have become better understood, and amidst increasing regulation and shrinking markets, the tobacco industry has pivoted by developing and marketing novel tobacco and nicotine products.
WHO defines a novel tobacco product as a tobacco product that employs new or unconventional technology (such as vaporization of tobacco into the lungs), or a product that has been on the market in a country for a limited period of time or is newly introduced in a given country, and/or a product which has been or could be marketed with claims of reduced risk.
In September 2020, British American Tobacco Kenya (BATK) lobbied the KRA to exempt nicotine pouches from tax for 3 years and, after the 3-year period, to have them taxed at a lower rate than normal cigarettes. BATK claimed this exemption was reasonable “due to the size of foreign direct investment” and referred to BATK establishing exports of the product.
Kenyan cigarette producers produced 18.35 billion cigarettes in 2019.
Kenya Tobacco Industry Market Share, 2011-2020
British American Tobacco Kenya (BATK) is the primary actor in tobacco manufacturing and distribution in Kenya, owning 71.5% of the market share, followed by Mastermind Tobacco Kenya (MTK), which owns 15.9% of the market share.
Myth: Increased tobacco taxes will lead to increased illicit trade.
Fact: The impact of tax increases on illicit trade is minimal if there is any impact at all.
The tobacco industry is actively involved in illicit trade. Since 2004, the four major international tobacco companies have paid billions of dollars in fines and payments to settle cigarette smuggling litigation in Europe and Canada.
Myth: Tobacco is a major contributor to Kenya’s economy in terms of employment, tax revenue and Gross Domestic Product.
Fact: A decline in economic activity from tobacco will not entail a sizeable decline in Kenya’s economy.
If tobacco users were to stop consuming tobacco products, they would spend the money they would have spent on tobacco products on other products, generating employment and revenue from those other products.
The industry’s aim is to make profits rather than to promote health among its consumers. In so doing, they give the perception of being supportive of economic development.
The number of jobs dependent on tobacco in Kenya is overstated. British American Tobacco Kenya (BATK) directly employs only 400 people at its factories.
Myth: Novel nicotine and tobacco products such as nicotine pouches and e-cigarettes are a safe alternative to cigarettes.
Fact: Although the long-term health effects of novel nicotine and tobacco products are unknown, they are still harmful to users’ health.
The e-cigarette aerosol that users breathe from the device may contain harmful substances including nicotine, ultrafine particles that can be inhaled deep into the lungs, flavorings such as diacetyl (a chemical linked to a serious lung disease), volatile organic compounds, cancer-causing chemicals, and heavy metals such as nickel, tin, and lead.
Myth: Tobacco control laws are unconstitutional or infringe international trade and investment agreements.
Fact: Many courts have ruled that tobacco control laws are not unconstitutional because the WHO FCTC demonstrates international consensus on the harms of tobacco use and provides a legal basis for the tobacco control policy being challenged.
A review of 96 cases filed by the tobacco industry or those representing their interests challenging the constitutionality of various tobacco control measures in domestic, regional and international courts between 27th February 2005 and 1st December 2017 revealed that these courts have overwhelmingly (81% of the cases) decided in favor of the governments. The courts have upheld the State’s duty to protect the constitutional rights to health, life and a clean environment over the commercial rights (property and free speech) of the tobacco industry.
With regard to international trade and investment, the tobacco industry challenged Australia’s plain packaging laws and Uruguay’s large graphic health warnings on the grounds that these tobacco control measures were incompatible with international intellectual property, trade and investment agreements. The courts ruled in favor of the respondent governments. These disputes clarified the space under intellectual property, trade and investment law for regulation to protect public health and demystified industry arguments intended to dissuade other like-minded countries by threats of expensive litigation at the international level.
The Guidelines for the Implementation of Art 5.3 of the WHO FCTC
The 2019, 2020 and 2021 Kenyan Tobacco Industry interference reports also make recommendations on what sections of the Tobacco Control Regulations 2014 (TCR 2014) on preventing Tobacco Industry interference have not yet been implemented, and how protection of Kenya’s tobacco control policies from industry interference can be strengthened. These include: