An activist wants all online platforms selling tobacco products, including shisha, that lack health warning labels and graphics be suspended.
Fredrick Bikeri also wants online sales and distribution of the tobacco derived products and smoking in areas without health warnings and in public vehicles be prohibited.
In the petition lodged before the high court under a certificate of urgency, Bikeri says the absence of health warnings on social media, websites, online stores, and other public platforms breaches Kenyans’ right to information under Article 35 of the Constitution.
He says this is especially critical regarding the harmful effects of tobacco products on health.
“Pending the hearing and determination of this application, the Honorable Court be pleased to grant Conservatory orders suspending all websites, blogs, social media accounts of manufacturers, distributors, vendors of tobacco and tobacco related products including ‘shisha’ products that do not possess health warning labels and graphics,” read the court documents.
Bikeri through his advocate Elkana Mogaka contends that the basic requisite for reducing tobacco use is that every person be informed of the health consequences, addictive nature, and potential for disability and premature death posed by tobacco consumption and exposure to tobacco smoke.
According to him, this information is unavailable on these social media platforms, websites and online stores where tobacco-derived products are accessible.
Mogaka wants the Communication Authority of Kenya (CAK) to direct all internet service providers to suspend, block or remove tobacco promotion websites, online stores and social media pages and subsequently suspend their licenses.
He says regulations under sections 21 of the Tobacco Control Act, which ensures that health warning labels are prominently affixed on all tobacco-derived products sold in Kenya, do not envision social media or online platforms in their regulations as the publication of educative and informative health warnings are limited to the packaging of the tobacco cigarettes.
Mogaka alleges that “the ambit of the section ought to be increased to make the publication of these health warnings to feature not only on the product packaging but also on all online forums’’.
‘’The provisions of the act are inadequate to properly meet the information standard envisioned under principle 4 of the framework convection on tobacco control (fctc) as well as article 36 and by extension article 43 of the Constitution,’’ reads court documents.
He contends that Kenya has a duty to implement article 11 and 13 of the framework convection on tobacco control which Kenya is a signatory to by banning the advertising of the tobacco products
Internet sales as per the guidelines in article 13 which involves advertising and promotion.
According to him, the problem is not only limited to advertising and promotion but also includes sales to minors, and illicit trade.
“The ban should apply not only to entities that sell the products but also to others, including companies that facilitate payment, online stores and online delivery services for the products.’’
Bikeri further accuses the Ministry of Health of disregarding section 21 of Tobacco Control Act by deregulating and allowing British American Tobacco to sell, distribute and circulate nicotine pouches and the manufacturer to completely disregard the requirement of publishing health warning graphics on packaging and only allowing the company to only publish text health warnings.
He says the Ministry of Health ought to have adequately researched on potential health consequences before legalizing and deregulating a dangerous and life-threatening product to enter and proliferate the Kenyan market, especially amongst the youth.
According to Bikeri, the nicotine pouches are mainly used by Gen-Z youths born from 1997-2012 especially popular among the urban youth and particularly among girls.
“The actions by the 1st respondent relaxing the regulations and rules as regards the regulation of nicotine pouches are arbitrary, and illegal and disregard the provisions of the tobacco control act, 2007 as well as the provisions of the tobacco control regulations, 2014,” read court papers.
Justice Bahati Mwamuye has since directed the petitioners to supply the court with four bound and paginated hard copies of the application within seven days.
Further, the applicant is required to serve the respondents with the application and petition within the same seven-day period and an affidavit of service within 14 days.
The respondents have been granted 14 days from the date of service to file and serve their responses to the application.
The petitioner will have 14 days to file rejoinder after being served with the respondents’ responses.
The matter will be mentioned on August 10, for orders and directions
In the petition, the Ministry of Health, Attorney General, the Tobacco Control Board and Communications Authority of Kenya have been sued.
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