Activist asks court to block online platforms that sell tobacco products

An activist is calling for the blocking of all online platforms that sell tobacco products (including shisha) and lack health warnings and graphics.

Fredrick Bikeri also calls for a ban on the online sale and distribution of tobacco products, as well as a ban on smoking in areas without health warnings and on public transport.

In the petition filed with a certificate of urgency before the Supreme Court, Bikeri says the absence of health warnings on social media, websites, online stores and other public platforms is a violation of Kenyans’ right to information under Article 35 of the Constitution.

This should be viewed critically, particularly in view of the harmful health effects of tobacco products.

“Pending hearing and decision on this motion, the Court orders to grant interim relief and block all websites, blogs and social media accounts of manufacturers, distributors and sellers of tobacco and tobacco-related products, including hookah products, that do not have health risk warnings and graphics,” court documents state.

Bikeri, through his lawyer Elkana Mogaka, is of the opinion that the basic prerequisite for reducing tobacco consumption is that everyone is informed about the health consequences, the risk of addiction and the risk of disability and premature death that tobacco consumption and exposure to tobacco smoke entail.

According to him, this information is not available on the social media platforms, websites and online stores where tobacco products are available.

Mogaka wants the Communications Authority of Kenya (CAK) to order all internet service providers to suspend, block or remove websites, online stores and social media pages that advertise tobacco and subsequently revoke their licenses.

He says that the provisions under Section 21 of the Tobacco Control Act, which ensure that all tobacco products sold in Kenya carry prominent health warnings, do not make provision for social media or online platforms in their provisions as the publication of educational and informative health warnings is limited to the packaging of tobacco cigarettes.

Mogaka argues that “the scope of the section should be broadened to require the publication of these health warnings not only on product packaging but also in all online forums.”

“The provisions of the Act are insufficient to meet the standard of information provided for in Principle 4 of the Framework Convention on Tobacco Control (FCTC) and Article 36 and further Article 43 of the Constitution,” the court documents say.

He argues that Kenya has a duty to implement Articles 11 and 13 of the Framework Convention on Tobacco Control, to which Kenya is a signatory, by banning the advertising of tobacco products.

Internet sales in accordance with the guidelines in Article 13, which include advertising and promotion.

According to him, the problem is not limited to advertising and promotion, but also includes sales to minors and illegal trade.

“The ban should apply not only to companies that sell the products, but also to others, including companies that process payments, as well as online stores and online delivery services for the products.”

Bikeri also accuses the Department of Health of ignoring Section 21 of the Tobacco Control Act by deregulating the regulations and allowing British American Tobacco to sell, distribute and distribute nicotine pouches. The manufacturer also disregards the requirement to publish health warning graphics on the packaging and only allows the company to publish health warnings in text form.

He believes the Ministry of Health should have conducted adequate research into the potential health consequences before legalising and deregulating a dangerous and life-threatening product so that it could enter the Kenyan market and spread, particularly among young people.

According to Bikeri, nicotine pouches are mainly used by Generation Z teenagers born between 1997 and 2012 and are particularly popular among urban youth, especially girls.

“The actions of the 1st defendant to relax the rules and regulations governing nicotine pouches are arbitrary and illegal and in contravention of the provisions of the Tobacco Control Act, 2007 and the provisions of the Tobacco Control Regulations, 2014,” the court documents state.

Judge Bahati Mwamuye then directed the applicants to submit four bound and paginated paper copies of the application to the court within seven days.

In addition, the applicant is obliged to serve the application and the petition on the respondents within the same seven-day period and to provide an affidavit of service within 14 days.

The defendants were granted 14 days from the date of service to file and serve their responses to the motion.

The complainant has 14 days after receipt of the respondents’ replies to file a reply.

The matter will be brought up on August 10 for orders and instructions

The petition sued the Ministry of Health, the Attorney General, the Tobacco Control Authority and the Kenya Communications Authority.

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