KENYA - Multinational tobacco firms want the implementation of new strict tobacco rules suspended, citing sections they claim are unconstitutional.
British American Tobacco (BAT) and Mastermind Tobacco have picked 10 clauses they want declared unconstitutional before the rules come into effect in two weeks.
Appearing on Thursday before the Senate Committee on Delegated Legislation, the two firms warned of industry wide disruption come June 5 because they will not have complied with the new rules.
Among other things, the rules require manufactures to print graphic warnings against smoking on each cigarette packet.
“As we speak, the greatest challenge is that we will not be able to comply with the date because of the ministry’s [Health] refusal to give us designs for repositories required in the labelling of tobacco packets.
“We have no local manufacturer capable of printing the designs locally and will therefore have to source packaging materials abroad,” Simon Cleverly of BAT (UK) told the committee chaired by Nandi Senator Stephen Sang.
“We are apprehensive that implementation of the regulation before conclusion of parliamentary approval will disrupt our operations. We are unable as of now to comply because the industry has been denied means to comply with regulations,” said Mr Cleverly.
BAT is opposed to a clause that requires compensatory contribution to the Tobacco Control Fund by importers who are to pay two per cent of the value of tobacco produced, manufactured or imported.
BAT and Mastermind said the regulation was unconstitutional as it violates Article 210 of the Constitution, which provides that tax or licensing fee may be imposed, waived or varied except as provided by legislation.
“This requirement also violates Article 114 of the Constitution which provides for imposition of taxation. The only person mandated to impose tax is the minister for Finance through a money Bill and not the Health minister through regulations,” said Josh Kirimania, Mastermind’s director of corporate affairs.
The manufacturers told the committee that the Health secretary had usurped powers donated to the Tobacco Control Board under section 7(2)(f) of the Tobacco Control Act to determine the compensatory contribution.
The manufacturers also opposed restriction on industry interaction with the government and other public institutions.
They said imposing a near-ban on any form of interaction between industry players, government agencies and public institutions would severely affect parties directly or indirectly associated with tobacco industry, including farmers, distributors, business associations and employees.
“Right now, we have received a letter from Mater Hospital indicating that we cannot sponsor this year’s Mater Heart Run owning to the regulations expected in June. This is unimaginable and retrogressive. We want to help underprivileged children,” said Mr Kirimania.
He said the restriction contravened constitutional rights to equality and freedom from discrimination.
Both companies also opposed regulation 36 which imposes fines of up to Sh500,000 or three-year jail terms. They said the fines contradicted penalties of Sh20,000 or six months jail term for offenders in the Tobacco Control Act, the parent law from which the regulations have been developed.
The tobacco manufacturers also opposed a requirement of product ingredients disclosure that includes leaves type and toxicology data, among others, saying it infringes on intellectual property rights.