The Tobacco Control (Amendment) Bill, 2024

Background

The Tobacco Control (Amendment) Bill, 2024 seeks to amend the Tobacco Control Act (Cap. 245A) to address the emergence of modern nicotine delivery technologies, such as e-cigarettes, vaporisers, and nicotine pouches. These products have previously been distributed in the Kenyan market without dedicated public health regulatory frameworks. The Bill intends to harmonize health protections and retail licensing across county governments.

Key Amendments

• Definitions (Section 2): Redefines 'smoking' to include inhaling or exhaling smoke or vapor from any tobacco product, electronic nicotine delivery device, or other vaporised substances. It also redefines 'tobacco product' to include synthetic nicotine formulations, cigarette papers, filters, and e-cigarette liquids.
• Exclusion of Medical Devices: Clarifies that electronic cigarettes do not include medicinal substances or medical devices defined under the Pharmacy and Poisons Act (Cap 244).
• Tobacco Control Board (Section 5): Amends the Board's composition by adding one representative nominated by the Council of County Governors.
• Tax and Price Policies (Section 12): Requires the implementation of distinct, progressive tax policies on electronic cigarettes and related products based on volume and nicotine concentration to discourage high-concentration consumption.
• Smoke-Free Zones (Section 33): Permanently prohibits smoking in places of worship, basic education institutions (as defined under Cap 211), healthcare facilities, childcare facilities, residential buildings where children are cared for, public service vehicles, aircrafts, passenger ships, and police cells.

New Obligations

• CS Approval (Section 14C): Manufacturers and importers must apply for and obtain product approval from the Cabinet Secretary responsible for health at least six months before first supplying or modifying any tobacco product.
• Product Testing (Section 14E): Manufacturers must submit product samples for conformity and safety testing, and pay the prescribed testing fees.
• Packaging Leaflets (Section 21): Unit packets of nicotine pouches and electronic nicotine delivery systems must include leaflets detailing instructions for use, contra-indications, warnings for specific risk groups, possible adverse effects, and manufacturer contact details.
• County Licensing (Section 20A): All operators must obtain county-level licenses to manufacture, distribute, store, or sell tobacco products, and restrict their sales strictly to fixed, licensed premises.

Penalties

• Dealing in Unapproved Products (Section 14G): Contravention carries a fine of up to KSh 1 million or five percent of the person's gross turnover (whichever is higher), or imprisonment for up to two years, or both.
• Use of Prohibited Additives/Flavours (Section 14J): Violating flavour or stimulant restrictions carries a fine of up to KSh 1 million, or imprisonment for up to two years, or both.
• Online Sales Violations (Section 19A): Selling tobacco or nicotine products online carries a fine of up to KSh 500,000, or imprisonment for up to three years, or both.
• Unlicensed Dealing (Section 20A): Operating without a county license carries a fine of up to KSh 100,000, or imprisonment for up to 12 months, or both.
• Hawking and Mobile Sales (Section 17A): Selling tobacco products via hawking, from vehicles, or mobile vending carries a fine of up to KSh 50,000, or imprisonment for up to six months, or both.

Transitional Provisions

• Existing Products (Section 14C): Manufacturers who were supplying products prior to the enactment of the Bill and wish to continue supply must apply for Cabinet Secretary approval within three months of the Act's commencement.