African Best Practices Report

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ACKNOWLEDGEMENTS

This report was prepared by the Convention Secretariat, WHO Framework Convention on Tobacco Control. Appreciation is expressed to Patricia Lambert and Kaitlin Donely (in relation to Article 8), Robert Cunningham (Article 11) and Shoba John (Article 13) for their contributions to this report.

Photo credits: Dorcas Kiptui, Ministry of Public Health and Sanitation, Government of Kenya; International Institute of Legislative Affairs, Kenya.

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INTRODUCTION

The African regional meeting on implementation of the WHO FCTC held on 9–12 October 2012 brought together 38 countries from the African Region, including 36 Parties and 2 non-Parties, to the WHO Framework Convention on Tobacco Control (WHO FCTC). The meeting was organized by the Convention Secretariat in cooperation with and hosted by the Government of Senegal.

The Parties presented an overview of the general status of and recent developments in implementation of the Convention in the Region, with 32 countries taking part in the general discussion. This section of the meeting was followed by presentations and discourse on achievements and challenges in implementing time-bound provisions of the Convention, namely those under Articles 11 and 13. The provisions on Article 8 that recommend a deadline were also considered during the general discussion.

During the meeting, Parties identified good country practices to guide promotion of implementation of the Convention in the Region and to utilize the existing mechanisms of assistance available internationally in strengthening implementation. Countries presenting these good practices include Mauritius on Article 11: packaging and labelling of tobacco products, Kenya on Article 13: tobacco advertising, promotion, and sponsorship, and also Seychelles and South Africa on the provisions of Article 8: protection from exposure to tobacco smoke.

The following countries show good country practices for many reasons; not only do they exhibit leadership and innovation in the adoption of the specified Article and its parts, but they make a continuous effort to improve upon and surpass the standards of the Article to continue to reaffirm the right of all people to the highest standard of health.

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ARTICLE 11

Mauritius Tobacco Package Labelling Requirements Introduction Mauritius has been a leader in Africa in terms of requirements for tobacco packaging and labelling. As a country with a population of 1.3 million, Mauritius has demonstrated how a relatively small nation can be successful in adopting advanced tobacco control legislation on packaging and labelling. The Mauritius experience – as described by Vinoda Pitchamootoo Vythelingam of the Mauritius Ministry of Health and Quality of Life1 – can be an example for many other Parties. This is important because well-designed package warnings are an effective means to increase awareness of the health effects of tobacco use, and to reduce tobacco use.2 The Mauritius tobacco labelling requirements are one component of the country’s overall tobacco control strategy. Mauritius also has an extensive ban on tobacco advertising, promotion and sponsorship including a retail display ban awaiting coming into force; a ban on smoking in indoor public places such as restaurants and bars, and restrictions on smoking in indoor workplaces; a ban on smoking in vehicles with any passengers; a ban tobacco sales to minors; tobacco taxation; educational campaigns; and other measures.

Figure 1. Ministerial announcement

Mauritius Minister of Health and Quality of Life, Dr. Rajesh Jeetah (centre right),

Feb. 12, 2009, announcing the new picture warnings. Photo: Véronique le Clézio. Summary of warning requirements

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Since 2009 Mauritius has required a series of 8 picture-based bilingual health warnings to cover 60% of the front (with French text) and 70% of the back (with English text). On 65% of each of the left and right sides of cigarette packages, the text message “Smoking kills” appears in French on one side and English on the other. Figure 2 illustrates cigarette labelling requirements. For tobacco products other than cigarettes, warning requirements in Mauritius either do not exist or are not FCTC compliant. The Mauritius tobacco labelling requirements are outlined in the Public Health (Restrictions on Tobacco Products) Regulations 2008 (“Regulations”), adopted November 28, 2008 and in force June 1, 2009. The actual images to be used in cigarette warnings are required separately by the Minister of Health and Quality of Life. The current requirements replace Circular 1999 of the Public Health Act, which had required a text-only warning for cigarettes (but not other tobacco products) with no specific requirements for size, location or colour. Under the old regulations, the warning appeared in a small font, in package colours, and on the side of the package.

Figure 2. Example of cigarette package from Mauritius

Front (60%) Back (70%) Left (65%) Right (65%)

Size As noted in the summary, Mauritius requires cigarette warnings to appear on 60% of the package front, and 70% of the back. At the time that the Regulations were adopted in November 2008, and implemented in June 2009, Mauritius had the largest cigarette package health warnings in the world at 65% (on average) of the package front and back. Mauritius also had the largest warnings on the front of the package, at 60%. It was only later in November 2009 that Uruguay would surpass Mauritius in terms of size, at 80% of the package front and back.

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As of May 2013, Mauritius continues to have the largest warning size in Africa, and is ranked seventh in the world for warning size among countries that have finalized warning requirements3: 85% Thailand (85% of front, 85% of back) 82.5% Australia (75%, 90%) 80% Uruguay (80%, 80%) 80% Sri Lanka (80%, 80%) 75% Brunei (75%, 75%) 75% Canada (75%, 75%) 65% Mauritius (60%, 70%) 65% Mexico (30%, 100%) The Regulations in Mauritius had initially required the size to be 40% of the front and 90% of the back. Prior to implementation, on May 27, 2009, the sizes were modified through a regulatory amendment to 60% of the front and 70% of the back4. In Africa, a 50% size for the package front and back has been implemented in Cameroon (text-only), Ghana (text-only), Madagascar (pictures) and Seychelles (pictures). This 50% size is the largest in Africa after Mauritius. Use of Pictures In 2009, Mauritius became the first African country to require picture warnings, and has since been followed by Madagascar (2012) and Seychelles (2013). The full set of eight Mauritius picture warnings, which covers a range of health effects, is illustrated in Figure 3. The text in English of the eight cigarette warnings is: Cigarette is a highly addictive drug Tobacco smoke harms the health of children Smoking causes heart diseases Smoking causes strokes Smoking causes lung cancer Smoking causes oral mouth cancer Tobacco use makes you impotent Smoking causes a slow and painful death Local people are depicted in the warnings for cultural sensitivity reasons. This was a key consideration when warnings were designed.

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Figure 3. Set of eight cigarette picture warnings in Mauritius5

Note: The top row illustrates four packages with the warning appearing on 60% of the package front. The bottom row

illustrates four packages with the warning appearing on 70% of the package back.

Language The warnings appear in English and in French, two national languages in Mauritius. Location on packages

Though the Regulations require health warnings to appear on the package front and

back, the Regulations allow the warnings to be placed anywhere on these surfaces. In

practice, manufacturers have placed the warnings at the bottom of these surfaces. The

Article 11 Guidelines recommend that warnings be located at the top of the package

front and back as this increases visibility6.

The Mauritius warnings appear horizontally on the back of the package (see Figure 3).

An evaluation should be done to assess whether this rather unique approach should

continue.

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Tobacco products other than cigarettes For cigars and pipe tobacco, the following single text warning is required to appear in English and in French: “Smoking causes cancer, heart disease, bronchitis and early death.” The warning is to appear in black text on a white background using Helvetica font style and in a font size of at least 10 point. The warning may be located anywhere on the package, such as the side. In practice, the warning size would be very small. The warning requirements for cigar and pipe tobacco do not comply with FCTC requirements. The warning does not cover at least 30% of the principal display surfaces. Moreover, there is only a single warning, with no rotation of any kind. Mauritius has no warning requirements at all for tobacco products other than cigarettes, cigars and pipe tobacco. For example, health warnings are not required on packages of bidis, chewing tobacco, snuff, water pipe tobacco and roll-your-own tobacco. In Mauritius, however, cigarette papers are banned7, meaning that roll-your-own tobacco is not an issue in the country. Water pipe tobacco is also banned8. The volume of chewing tobacco and snuff is small. Emissions statement Consistent with the Article 11 Guidelines, Mauritius does not require tar and nicotine yield numbers on packages. Indeed, Mauritius has no requirement at all for a message on the package regarding cigarette emissions, in addition to the picture warnings on the package front/back. Mauritius does require the message “Smoking kills” to appear on 65% of the side of cigarette packages in English, and on 65% of the other side in French (“La cigarette tue”). Only a small number of other Parties have so far required messages on both left and right side panels, instead of just one. Misleading packaging The Regulations prohibit tobacco product packaging from displaying any “term or other sign that directly or indirectly creates an impression that a particular tobacco product is less harmful than others”. The wording of this prohibition could be enhanced through use of wording in Article 11.1(a) of the FCTC. The Regulations specifically prohibit “wording such as ‘mild’, ‘low tar’, ‘light’ ”. The Regulations prohibit tobacco companies from displaying tar, nicotine and carbon monoxide numbers on packages. Though such a provision is recommended by the Article 11 Guidelines given the misleading nature of such numbers, relatively few Parties to date have implemented such a provision.

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Cartons The cigarette health warning requirements also apply to cigarette cartons. Thus a picture warning appears on 60% in French of the front principal display area, and 70% in English of the back principal display area. The text message “Smoking kills” appears on 65% of two other carton sides, once in French, and once in English. Figure 2 illustrates a cigarette carton.

Figure 4. Cigarette carton

Compliance Mauritius has achieved a high level of compliance with its warning requirements for cigarettes. For the small text warning required for cigars and pipe tobacco, detailed compliance information is not readily available. Initially in 2009, there was non-compliance for cigarettes sold in duty-free stores, whether the duty-free stores were located at the international airport or elsewhere in the country. Tobacco manufacturers and store operators argued that duty-free stores fell outside national legislation. However, the Mauritius Government confirmed that the legislation did indeed apply to duty-free stores, and subsequently cigarettes supplied to duty-free stores would depict the same picture warnings as depicted on packages in regular stores. Implementation date – stockpiling The Regulations contained an exemption for any packages of cigarettes or cigars imported or manufactured prior to the Regulations coming into force on June 1, 2009. The Regulations did not contain an implementation deadline at the retail level. This meant that manufacturers, importers and retailers could stockpile inventory without the new requirements. The result was that it was not until October 17, 2009 before the first packages with the new warnings were noticed on the market. New series of warnings

It has been four years since picture warnings were first required to appear in Mauritius.

Research by the ITC Project found that the Mauritius warnings were starting to “wear

out”9. This emphasizes the need for a new set of picture warnings, which the Mauritius

Government has been actively developing.

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Plain packaging The Mauritius Government has indicated that it is considering implementation of plain packaging as a future measure. International cooperation The Mauritius Government owns the copyright for 7 picture warnings that have been developed, and is willing to grant other governments’ permission to use these images on a royalty-free basis10. The warning depicting mouth cancer was obtained from other source. Mauritius has provided its warning images for inclusion in the database maintained by the WHO FCTC Convention Secretariat11. The Mauritius picture warnings would be available for use by Parties in Africa and elsewhere. Seychelles is already using (with permission) four of the Mauritius picture warnings. Recommendations for improvement While Mauritius has very strong packaging and labelling regulations, improvements are possible, including the following: 1. Require warnings for all tobacco products, not just cigarettes, in a way that is consistent with the FCTC and with best practice in terms of size, use of pictures, content and rotation. The FCTC requires that packages of all tobacco products depict warnings and sets out minimum requirements. 2. Have not just one set of picture warnings, but two or three sets that would change after a fixed period of time, such as every 12 months. At present, in Mauritius the warnings have been unchanged between 2009 and 2013, with a new set of picture warnings not yet finalized. 3. Locate the warning at the top (not the bottom) of the package front and back. 4. Establish a warning size that is as large as is achievable within the context of the country. Many Parties will initially require a warning size of 50% for picture warnings. Mauritius certainly could increase the size to at least 75% or 80% of the package front and back, as several other Parties have done. 5. Add additional message content as part of the overall warning system, such as additional health effects, advice on cessation, and annual personal financial cost of smoking. It must be noted that an initial set of warnings can have the content enhanced over time. 6. Have a rotated series of qualitative toxic emission messages (without yield numbers) that would appear on both the left and right side panels. Mauritius currently

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has one only message (“Smoking kills”) that appears on the side panel, while several other Parties have required multiple side panel messages to appear concurrently. In terms of colour, consideration could be given to requiring black text to appear on a yellow background, as Australia has done. 7. Prohibit all misleading packaging with legislative language based on Article 11.1(a) of the FCTC itself, that is to prohibit any packaging and labelling that is “false, misleading, deceptive or likely to create an erroneous impression about its characteristics, health effects, hazards or emissions, including any term, descriptor, trademark, figurative or any other sign that directly or indirectly creates the false impression that a particular tobacco product is less harmful than other tobacco products”. 8. Ensure that there is an implementation deadline at the retail level. 9. Implement innovate measures, such as requiring a warning on every cigarette, and requiring a warning on equipment for water pipe smoking. 10. Require plain packaging, in due course. For most Parties in an early phase of package labelling, it is best to focus on package warnings and labelling measures other than plain packaging.

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ARTICLE 13

Kenya’s Legislative Efforts on the Requirements of the WHO FCTC Regarding

Tobacco Advertising, Promotions and Sponsorship

Introduction

The WHO Framework Convention on Tobacco Control (FCTC) adopted by the World Health Assembly in May 2003, is among the most widely embraced treaties under the United Nations, with 176 Parties till date. Kenya signed and ratified the FCTC on 25th June 2004. This report is part of the efforts to demonstrate good practices in the implementation of the treaty. African Regional Workshop on Implementation of the WHO Framework Convention on Tobacco Control in Dakar, Senegal from 9-12 October 2012 showcased and identified ‘good country practices” from the region in the implementation of the treaty12

Kenya as a Party to the FCTC has made significant efforts in legislating to control Tobacco Advertising, Promotion and Sponsorship (TAPS) in line with its treaty obligations. This review aims to describe the legislative efforts of the Government of Kenya to comply with the FCTC’s requirements for comprehensive control of TAPS that could guide similar efforts in other jurisdictions. The scope of the review did not include verification or validation of the law implementation and enforcement experiences or their effect on tobacco use. Methodology The report is the result of a desk review of literature that primarily described legislative and administrative measures taken by the Government of Kenya in regulating tobacco advertising, promotion and sponsorship. The literature reviewed includes the Kenyan tobacco control legislation, the Children’s Act, 2001 and Kenya’s FCTC Implementation reports. A presentation by Government of Kenya on the implementation of WHO FCTC Article 13 at the African Regional meeting, the summary and recommendations of the regional meeting, country profile in the WHO Report on the Global Tobacco Epidemic 2011, Tobacco Atlas and implementation review reports that are in the public domain have also been reviewed. The analysis did not include any general trade, business, media or other laws that may have implications for the control of TAPS in the country. Official documentation on Kenya’s experience in implementing and enforcing its law was not available for review. The Framework Convention on Tobacco Control constituted the primary framework for the review. Article 13 of this international, legally binding treaty on tobacco control requires its Parties to comprehensively ban tobacco advertising, promotion and

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sponsorship, including cross border elements within a period of five years of the treaty’s entry into force for the Party. The treaty provides a comprehensive definition of “tobacco advertising and promotion” and “tobacco sponsorship” (Box 1). BOX 1. FCTC Definition of Tobacco Advertising, Promotion and Sponsorship (Article 1)

“tobacco advertising and promotion” means any form of commercial communication, recommendation or action with the aim, effect or likely effect of promoting a tobacco product or tobacco use either directly or indirectly.

“tobacco sponsorship” means any form of contribution to any event, activity or

individual with the aim, effect or likely effect of promoting a tobacco product or tobacco use either directly or indirectly.

FCTC Article 13 Guidelines developed by Parties pursuant to this Article, along with parts of the guidelines to its Articles 5.3 (Protection of Public Health Policies with respect to tobacco control from commercial and other vested Interests of the tobacco industry) and 11 (Tobacco packaging and labelling) offers further guidance to Parties in meeting their TAPS-related obligations under the treaty. Kenya’s documented legislative efforts on TAPS were reviewed against these FCTC Articles and their respective implementation guidelines. International best practices in TAPS laws and implementation were also considered in analysing the Party’s efforts. Tobacco Control in Kenya Tobacco use in Kenya has seen significant increase in recent times, particularly in the younger population. Consecutive Global Youth Tobacco Surveys 13 , 14 in the country show that the tobacco use among school students (aged 13-15 years) has increased substantially from 13%in 2001 to 18.6 % in 2007. 82.2% of the students surveyed in 2007 reported having seen pro-cigarette advertisements on billboards, in the 30 days before it, 17.6% had an object with a cigarette brand logo, 11.3% were offered free cigarettes by a tobacco company representative. Citing the Kenya Demographic & Health Survey of 2008-09, the second FCTC implementation report of the Party in 2010 indicates a national smoking prevalence of 20.06% in the 15-49 years age group15. In 2007, Kenya enacted a legislation specific to tobacco control, the Tobacco Control Act, 200716 which became fully enforceable on 8 July 2008. The legislation requires, among others, a range of measures to regulate TAPS. The legislation aimed, among other things, to comprehensively ban tobacco advertising, promotion and sponsorship including cross-border TAPS, showcasing Kenya’s commitment to regulate TAPS as well as meet FCTC obligations in this regard within five years of the treaty’s entry into force for the Party. Kenya’s Legislative Efforts in Regulating Tobacco Advertising, Promotion and Sponsorship

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Kenya implements FCTC requirements relating to the prohibition of tobacco advertising, promotion and sponsorship primarily through the relevant provisions of the Tobacco Control Act, 2007. A detailed analysis of this law in the light of FCTC articles 13, 11 and 5.3 and their respective Guidelines brings to light some legislative strategies that could serve as good practices in TAPS control.

A) Towards Fulfilling FCTC Article 13 Obligations

1. Broad Scope of the TAPS regulation:

Kenya’s Tobacco control Act, 2007 prohibits direct advertising as also indirect forms such as brand sharing and brand stretching across communication platforms17. Significantly, the prohibition applies to all tobacco products. In conformity with FCTC’s definition of “tobacco advertising and promotion”, the definition of tobacco advertising under Kenyan law includes not only those that promote tobacco products and their brand elements but also tobacco use.

In addition to regulating communication and representation that promotes tobacco, the law also prohibits actions that encourage tobacco use such as display of tobacco packs (Part I Section 2), mail order deliveries (Part IV Section 20), contests and sales promotions (Part V Section 30). Once again, this synchronises with the corresponding FCTC definition of “tobacco advertising and promotions” (Article 1).

In line with FCTC’s definition of “tobacco sponsorship”, the Act prohibits tobacco sponsorship of a broad range of events, including trade-related ones. Kenya’s ban on tobacco sponsorship, considered along with its definition of “promotions” (in parenthesis above) that include recognition of or goodwill for the tobacco manufacturers” helps to prohibit corporate social responsibility activities and their promotion.

2. Regulation of Emerging Promotional Platforms: Article 13 Guidelines of FCTC require Parties to ban tobacco advertising, promotion and sponsorship across platforms comprehensively. Kenyan tobacco control Act prohibits advertising across media and all forms of promotional communication and actions.

“"promotion" means a representation,

including an advertisement, whether direct

or indirect, including any communication of

information about a product or service and

its price and distribution, that is likely to

influence and shape attitudes, beliefs and

behaviour about the product or service, or

that is intended to or has the effect of

inducing consumers to use tobacco

products, underestimate the dangers of

tobacco consumption, or create

recognition of or goodwill for the tobacco

manufacturer”.

Tobacco Control Act, 2007; Kenya.

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Internet & Mail Orders: Besides the mainline platforms such as print and electronic media, Kenya’s prohibition extends to tobacco advertising on Internet-based platforms and mail order promotions, placing Kenya among the growing number of countries that currently require these provisions.

Points of Sale: Kenyan law also recognises points-of-purchase as potential avenues for tobacco promotion and has therefore banned self-service product displays, vending machines and pack displays. Movies & Art: Kenyan law also regulates endorsements and depictions of tobacco products in any forms of expression that are misleading or incapable of fully informing consumers of the hazards of tobacco, without evoking a conflicting message or impression. If implemented effectively, this has the potential, among others, to prohibit product placement and brand endorsements in movies, plays and other forms of art and communication.

3. Prohibiting single-unit sales:

Kenyan law includes several supply side measures, some of which indirectly reduces exposure, particularly of vulnerable groups, to tobacco products and their promotion. A case in point is its prohibition of sale of single units of tobacco products, tobacco look-alikes as also sale in “kiddie packs” of less than 10 cigarettes/10 units of other tobacco products. These prohibitions also fulfill the requirement of Kenya’s Children’s Act (Section 16)18 to protect children from the use of harmful substances such as tobacco products.

4. Cross border control of tobacco advertising, promotion and sponsorship:

Table 1. Emerging Platforms of Tobacco Promotion Regulated under Kenyan Law

Domestic Platforms Trans-Border Platforms

Vending Machines Internet Self-Service Displays Retail Mail Orders

Pack Displays Movies, Plays, Art

Telephones Tobacco Packs Tobacco Look-alikes Accessories

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While Parties to the FCTC have been making steady progress in increasingly regulating TAPS comprehensively within their jurisdictions, efforts to regulate cross-border tobacco promotions are still emerging. In this context, Kenyan tobacco control law includes provisions that have a bearing on cross-border tobacco promotions. Several provisions in the law indirectly prevent the “outflow” of TAPS banned in the country to other jurisdictions. For instance, Kenya’s ban on tobacco advertising in all print and electronic media and tobacco sponsorship of events taken together with its prohibition on publishing, broadcasting and disseminating any promotion could benefit other countries that may be receiving media content (such as via magazines, movies, Compact Discs, sports broadcasts among others) from Kenya. Kenya’s ban on tobacco advertising in electronic media also includes Internet-based promotions that are cross-border in nature.

Additionally, the Kenyan law explicitly prohibits “inflow” from other jurisdictions of those forms of tobacco promotions that are banned in Kenya. According to the 2012 Global Progress Report on implementation of WHO FCTC, nearly one-third of the Parties with a comprehensive TAPS ban reported it to include regulations on the global Internet 19 . Increasing number of countries regulating both “inflow” and “outflow” of TAPS, supported by a website as suggested by Article 13 Guidelines (Annex 3) for reporting violations and follow up action could help enhance the effect of domestic TAPS bans and reduce cross-border TAPS progressively. Figure 1. Number of FCTC Parties reporting inclusion of selected provisions in their ban on tobacco advertising, promotion and sponsorship (of 86 Parties that reported a comprehensive ban)

Source: 2012 Global Progress Report of Implementation of the WHO FCTC.

5. Penalties:

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The law stipulates reasonable penalties that could serve as a deterrent for violations. In Kenya, violation of the prohibition on tobacco vending machines attracts a fine of up to one hundred thousand Kenyan shillings, or imprisonment for a term up to twelve months, or to both. A notable feature of the Kenyan tobacco control law is that it reckons even officers of any legal entity who acquiesced to an offence to have committed the offence themselves, attracting the penalties applicable for offending legal entities. This fixes responsibility for compliance on the individuals managing legal entities that promote tobacco, and therefore has the potential to deter violations and improve compliance.

6. Multi-sectoral law enforcement mechanism:

Kenya’s Tobacco control Act lays down a detailed enforcement mechanism. It identifies officers under the Public Health Act to be authorised officers for law enforcement, and authorises Director of Medical Services to notify others. The Act provides for entry and search powers to enforcement officers on reasonable suspicion of the contravention of the law to a wide range of places. The law has a qualification of “things” that could be searched and seized, as enforcement of TAPS laws often involves promotional materials that are not tobacco products, but other materials such as printed matter or electronic storage devices. The law also provides for due process for forfeiture and restoration of seized products and things. Kenyan law provides for an exemplary Inter-Ministerial consultation led by the Minister of Health for formulating a policy framework for multi-disciplinary and inter-sectoral implementation of the Act including with Ministers of Information, Communication, Trade, Industry and Foreign Affairs that is critical given the inter-sectoral and cross border nature of TAPS regulations. Additionally, the Ministry of Public Health in collaboration with civil society trained nearly 1000 enforcement officers, media and NGOs in 18 towns for effective implementation of the law. Tobacco Control Board provided under the law also has an advisory role including in setting TAPS policies. The Tobacco Control Fund set up under the law could potentially support implementation of its TAPS provisions.

7. Responsible Entities:

Article 13 Guidelines recommends (in para 54) the responsible entities to be defined broadly to include the entire marketing chain. Kenya’s Tobacco Control penalises those persons who engage in advertising, promotion and sponsorship of tobacco products. Additionally, those in control of communication platforms such as publishers and broadcasters are prohibited from disseminating tobacco promotions that are banned by law. Their responsibility is reinforced through penalties for non-compliance.

B) Towards Fulfilling FCTC Article 11 Obligations of Relevance to TAPS

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1. Limiting “on-pack” promotion: Tobacco companies engage tobacco packs as “advertising space” that is at close proximity to users and potential users. Guidelines for effective implementation of FCTC obligations under Article 11 (Tobacco Packaging &Labelling) recognises thatpictorial health warnings and messages could possibly “disrupt the impact of brand imagery on packaging and decrease the overall attractiveness of the package”.These Guidelines therefore require that the warnings should be 50% or more of the front and back of the pack and include pictures or pictograms. Kenyan law provides for health warning, including pictograms occupying 50% of the front and 60% of the back of the packages.

2. Outlawing misleading information on packs:

In line with FCTC’s Article 11, Kenyan tobacco control law prohibits misleading descriptors that are likely to create an erroneous impression about the characteristics, health effects, health hazards or social effects of the tobacco product or its emissions.

C) Towards Fulfilling FCTC Article 5.3 Obligations

1. Regulation of corporate social responsibility (CSR): Guidelines for implementing FCTC’s Article 5.3 reckons activities described as “socially responsible" by the tobacco industry to be public relations efforts aimed at increasing tobacco use and therefore falling with the treaty’s definition of TAPS. Section 6 of these Guidelines therefore requires FCTC Parties to denormalise and regulate such activities. Kenya’s ban on organising or sponsoring any event or activity, including those of a cultural, educational, sporting or trade nature, to advertise or promote tobacco products prevents such activities from being used for purposes of corporate social responsibility and image-building.

2. Avoiding conflict of interest in policy setting:

Section 4 of the Article 5.3 Guidelines requires Parties to avoid conflict of interest by government officials and policy-setting bodies dealing with tobacco and public health policies. Kenya’s Tobacco Control Board that has a policy advisory role, including on TAPS matters, distinctly excludes by law those with direct or indirect affiliation with the tobacco industry or its subsidiaries. The law further stipulates significant penalty to Board members failing to disclose ties with the industry. Kenya’s tobacco control fund also requires avoidance of conflict of interest for the resources it receives.

Kenya’s experience implementing the tobacco advertising, promotion and sponsorship ban Kenya undertook training of a large number of enforcement officers, media and civil

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society organisations to support its implementation efforts. In Nyeri, public health officials sensitised retail businesses about the requirements of the law. Kakamega reported the Ministries of public health and education, local government, police, court and civil society embarked on a comprehensive drive comprising of mass education through public rallies, issuing information, warnings and notices to traders and managers of businesses, training law enforcement officers, and the arresting and prosecuting offenders. Increasing awareness of the requirements of the law among stakeholders and action by enforcement agencies have led to removal of bill boards and repainting of buildings bearing brand elements in major cities and towns.

Despite the on-going enforcement efforts, outdoor advertising on billboards and buildings continue in several parts of the country. Points-of sale are emerging as major avenues for on-going advertising. Branded umbrella-shades, posters, display cases at kiosks and stalls and self-service displays at supermarkets continue to be reported. Tobacco companies are circumventing the ban on point of sale advertising, for instance, by replacing brand signage’s with entire kiosks painted in brand elements such as of Supermatch brand in Figure 2 (right)20. Attractive cigarette displays with easy access to minors as in Figure 2 (left) have been reported to thrive in violation of the law. Figure 2. Left: Cigarette display alongside candies; Center & Right: Kiosk painted in brand colours

Box 2. Early Warnings Command Compliance

In May 2009, the British American Tobacco –

Kenya (BAT-K) staff participated at the annual

labour day celebration parade spotting branded

apparel, caps, bags and umbrellas. A monitoring

team comprising of Ministry of Public Health and

civil society organizations documented this

violation of the country’s tobacco control law. The

Ministry warned BAT against similar action in

future, which successfully thwarted such attempts

thereafter.

Adapted from: Turning Off the TAPS: Strategies to Control

Tobacco Advertising, Promotion and Sponsorship in Kenya,

ILA.

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The sale of cigarettes by sticks and to minors also continues, even as chewing tobacco products from other jurisdictions that do not adhere to Kenya’s packaging stipulations enter the market. In clear violation of the law, tobacco companies indulge in sales promotions at bars through distribution of T-Shirts, caps, and other gifts. Tobacco companies continue to sponsor interactive radio shows in grassroots FM stations such as in Embu and Mastermind Tobacco Kenya sponsored the Mater heart run 21 . Facebook groups such as SMOKERS that promote smoking continue to exist despite the ban on tobacco advertising via the Internet.22 Good to Better Practices: Strengthening Kenya’s TAPS Regulations in Compliance of FCTC Kenya’s tobacco control legislation of 2007 provides the framework for advancing tobacco control in the country and meeting its FCTC obligations. The Party has made subsequent efforts to implement the law. Kenya’s efforts could be strengthened in the following areas to achieve significant reduction in tobacco use and tobacco-related mortality and morbidity.

A) Monitoring and Enforcement of the Existing Legislation:

1. Monitor compliance, strengthen enforcement:

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Best practices indicate that early and active monitoring of compliance is a key step to effective enforcement. Government agencies that are already monitoring compliance of other broadcasting and publishing laws could be mandated to additionally monitor TAPS violations under the tobacco control law. France has successfully empowered and resourced designated tobacco control NGOs to monitor tobacco promotions and report violations directly to the courts. Establishing and announcing compliance lines (telephone hotlines) has also been reported to be effective in assisting the public to report violations23.

2. Broaden the enforcement Machinery:

Kenyan tobacco control Act recognises officers under the country’s Public Health Act as authorised officers for its enforcement. Bangladesh, for instance, has successfully engage Mobile courts to enforce its advertising ban at points of purchase. It is not clear if additional agencies or officers are engaged in enforcing the TAPS provisions of the law. Given the reported resource constrains in FCTC implementation, it would be cost-effective to additionally authorise and engage Government agencies and officers with relevant mandate and expertise, such as media, industry and trade regulators in monitoring and enforcing compliance with TAPS control measures. Further, their inclusion on the Tobacco Control Board could help enlist increased political commitment from the concerned departments for implementation of TAPS laws. Collating, analysing and tracking compliance and enforcement data is critical to strengthening enforcement as for identifying gaps in the law itself.

3. Proportionate accountability and penalty for all responsible entities:

Article 13 Guidelines recommend entities responsible for tobacco promotions to be defined across the marketing chain. It also suggests graded responsibility based on the extent of control over the content or the platform. The scope of responsible entities for various types of tobacco promotions and platforms needs to be elaborated in the Kenyan law to include all those in the marketing chain, besides the tobacco companies and those in control of media that it currently holds responsible for compliance. The law also needs to consider graded penalties to the entities commensurate with their control over the promotion as also increase penalties for repeat offences.

While banning product endorsements, for instance, responsibility for compliance

and penalties for violations need to be fixed in the decreasing order of control over

the activity- from tobacco companies that commission the task to advertising

agencies that design the content, media platforms that broadcast the promotion, and

models who endorse the tobacco product and any intermediaries.

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4. Adequately fund implementation: Law implementation does not figure among the direct mandates of the Tobacco Control Fund. However, its broad objectives on tobacco-related research, documentation and dissemination and incidental functions can be leveraged to support enforcement of TAPS policies in the country. Successive FCTC implementation reports of Kenyan Government24,4 indicate lack of human and financial resources to implement the law. The civil society’s FCTC shadow report from 2010 further identifies that Tobacco Control Fund set up under the Kenyan Tobacco Control Act of 2007 is yet to receive budgetary allocations from the Ministry of Finance. Early identification of sustainable resources could strengthen implementation of the law, including TAPS control.

5. Operationalise disclosure of tobacco marketing expenditure:

Information on Tobacco industry’s expenditure on marketing and other promotional activities serves as an indicator of emerging forms of tobacco promotion, platforms and entities involved. This in turn can inform policy development and enforcement, prevent violations and improve compliance. Kenyan law empowers the Tobacco Control Board to recommend, and Minister of Public Health to notify this requirement. Kenya can therefore leverage its law and FCTC requirements summarised in Table 2 to require industry to periodically submit this information and further use it to expand the scope of its TAPS ban to address continuing and emerging promotional tactics of the tobacco industry.

Table 2. Disclosure of Tobacco Promotional Expenditure- FCTC Requirements

Article 13 Article 13 Guidelines Article 5.3 Guidelines

Parties to require the tobacco industry to disclose to relevant governmental authorities of expenditures on advertising, promotion and sponsorship that are not yet prohibited. Subject to national law, Parties may decide to further use the information to inform its public or other Parties.

Recommends requiring regular and on-request disclosure by tobacco industry to the Government of the kind of continuing TAPS including by brand, placement and frequency, intended territory of receipt of cross border TAPS, responsible entities and financial and other resources involved.

Parties to require tobacco industry to periodically submit information on marketing expenditures, lobbying, philanthropy, political contributions and other activities not yet prohibited under Article 13 of the treaty.

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B) Upgrade and strengthen existing legislation:

1. Strengthen definition: Advertising under Kenyan tobacco control act currently covers those “designed” to promote tobacco products and use. FCTC definition of “advertising and promotion” includes even those with the likely effect of promoting tobacco products or use. Expanding the scope of the definition of advertising to include the latter would move the onus of proof of the intent of any advertising or promotion away from the regulator and enable Kenya to regulate even indirect advertising more comprehensively and effectively. For instance, BAT Kenya advertises its graduate programme in major national newspapers in a manner that is likely to create “good will” for the company (Appendix 2- BAT Kenya Advertisement in Newspapers), which is prohibited by the Kenyan tobacco control law. It is important that the law provides clear guidance in addressing and fixing the likely promotional effect of such advertisements.

2. Update the law periodically to include emerging TAPS: Tobacco companies are known to circumvent existing laws and promote their products in newer ways. A case in point is the tobacco industry’s introduction of attractive “inserts” promoting their products in tobacco packs, even as the Government has restricted the scope for advertising on packs through the introduction of picture-based health warnings (Appendix-1: Dunhill’s Promotional Insert in Cigarette Packs). Reduction in tobacco consumption requires law-making to stay ahead of industry’s promotional tactics. In the case of TAPS laws, this calls for periodic review and updating of forms of TAPS, platforms and responsible entities that need to be brought under the scope of the law. Kenyan law helpfully provides for the Tobacco Control Board to make policy recommendations with regard to TAPS and empowers the public health Minister to control labelling, packaging, sale, distribution, promotion or advertising of tobacco products for consumer safety. These provisions in the law can be engaged to regulate emerging forms of TAPS in a timely manner. Based on the recommendations of FCTC Article13 guidelines and available implementation reports, Kenya has the scope to improve the comprehensiveness of its TAPS prohibition by strengthening existing provisions and extending it to emerging forms of tobacco promotion such as viral marketing, consumer surveys and retailer promotions.

3. Eliminate Tobacco Promotions on Packs:

FCTC Guidelines on Articles 11 and 13 recommend plain packaging of tobacco produces that significantly reduces promotional opportunities via packs. Kenyan law currently requires sizeable health warnings on tobacco packs that

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limit the advertising space on packs. The law further prohibits promotion of brand elements such as trademark, trade name, logo, graphic arrangement, design, colour, motto and slogans that evokes brand association as also misleading descriptors. It also prohibits false promotion by way of misleading or deceptive descriptors on tobacco packs. Enforcing the ban on misleading descriptors, and extending the prohibition of promotion of brand elements to tobacco packs, along with larger health warnings on standardised packs would help Kenya to nearly eliminate the remaining avenue for tobacco promotion on packs and enable increased compliance with the relevant FCTC provisions. Countries that are comprehensively banning TAPS are increasingly considering “plain” packaging that fits the Kenyan context.

4. Fully protect TAPS law-making and

Implementation from tobacco industry interference

Parliamentary debates on the Kenyan tobacco control bill caution about the likely conflict of interest on the Tobacco Control Board arising from the membership of a business association whose stated objective includes promotion of commercial and industrial interests of its members such as tobacco companies. The debate suggested applying relevant codes of conduct to rule out the potential conflict of interest on the Board25. FCTC’s Article 5.3 guidelines require disclosure and exclusion of any persons or entities with direct or indirect association or interests in tobacco business from such policy-making bodies. The requirement of Kenyan law in this regard desires to be implemented stringently to avoid conflict of interest in an exhaustive manner.

Key lessons from Kenya’s experience implementing FCTC Article 13 Kenya’s legislative effort in regulating TAPS presents key lessons that could inform law-making in other jurisdictions. These include:

Comprehensiveness of TAPS Ban is critical in reducing exposure to tobacco marketing. The constantly evolving tobacco promotions scenario presents a moving target, requiring “comprehensiveness” to be viewed as a progressive goal to be achieved through increasing and timely regulation of emerging forms of TAPs and platforms.

Action on cross border advertising is required to achieve TAPS-free environment. Regulation of its inflow and outflow requires action through domestic

“Parties should not allow any

person employed by the tobacco

industry or any entity working to

further its interests to be a member

of any government body, committee

or advisory group that sets or

implements tobacco control or

public health policy.”

FCTC Guidelines Article 5.3 Section 4.8

13

legislation, coupled with a global coordination mechanism for reporting violations and improving compliance.

Effective enforcement determines the ability of TAPS laws to meet their objectives and informs further law-making. Planned, early, visible and proactive enforcement aiming to improve compliance can reduce TAPS.

Technical, technological and financial resources propel implementation. These need to be identified and planned through domestic sources and international collaborations.

Multi-sectoral nature of TAPS demand inter-sectoral coordination for its effective control. It needs to be mandated by law and operationalised through implementation.

Conflict of interest with tobacco companies and allied interests needs to be avoided in policy-setting and implementation. This requires complete disclosure and exclusion of such interests from such fora.

TAPS regulations need to work in tandem with other FCTC requirements to achieve population-level benefits. As tobacco use is driven by multiple factors, its control calls for comprehensive action across price and non-price measures and demand and supply strategies.

Box 3.Kenya`s FCTC Article Experience: Resonance with the Rest of Africa and

Rest of the Developing Countries

Kenya’s experience may have specific relevance for several countries in Africa and other low-resource settings booth in terms of similar challenges and strategies to address them. For instance sale by single sticks/units of tobacco products is common in most of the developing world. Similarly, points of purchase in these settings ten to be less regulated and more frequented when compared to the developed countries. All the same, the recent media boom in developing countries implies increased exposure to TAPS or less regulated environments in these countries that tobacco companies exploit to promote their products, particularly in indirect forms. The competing priorities of health and development in the low-resource settings present challenges to prioritising FCTC implementation (TAPS regulations included), and finding means for law enforcement. Kenyan tobacco control law reflects several provisions that address the above challenges. For instance, it strategically bans sale by single units of tobacco products, requires prohibitions of tobacco promotion and both points of purchase and across major media platforms, including the emerging ones such as the Internet and phones.

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The ban includes indirect forms of advertising such as brand stretching, trademark diversification, product placements and endorsements. The law provides for a tobacco control fund for implementation of its provisions including TAPS regulations. It strategically draws on the strengths and resources of diverse Government and non-government agencies to enhance its law implementation. It holds the tobacco companies accountable through provisions for expenditure disclosures and heavy penalties for violations. Effective implementation would inform the impact of the law in reducing exposure to TAPS.

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ARTICLE 8

Implementation of Article 8 of the WHO FCTC: case studies from Seychelles and South Africa

Scientific Evidence Scientific evidence has unequivocally established that exposure to tobacco smoke causes death, disease, and disability, a fact recognized by the parties to the World Health Organization Framework Convention on Tobacco Control (“FCTC”).26 Tobacco smoke contains more than 7,000 chemicals and compounds, approximately 70 of which are known or suspected human carcinogens.27, 28, 29 There is no safe level of exposure to tobacco smoke and even brief periods of exposure to low levels of tobacco smoke is harmful.30,31 As a result, only the creation of 100% smoke-free environments provides effective protection from the health risks of exposure to tobacco smoke.

Measures restricting smoking to designated smoking areas or rooms do not provide adequate protection, despite being portrayed by the tobacco industry as suitable alternatives to a smoking ban. The evidence behind the ineffectiveness of designated smoking areas or rooms is robust. An Australian study demonstrated that providing separate areas for smokers and non-smokers provided “little to no protection” from environmental tobacco smoke.32 Restricting smoking to physically separate designated smoking “rooms” was only marginally better than restricting smoking to separate “areas” within the premises. An engineering study commissioned in 2009 by the government of Hong Kong to test the feasibility of smoking rooms concluded that tobacco smoke inevitably leaks out of designated smoking rooms despite stringent design and ventilation standards.33 Similarly, a 2012 study of restaurants in Pretoria, South Africa found high levels of smoke pollution in non-smoking areas of restaurants.34 The median air quality measurement in the non-smoking areas was “at least seven times higher than the WHO standard…set for good air quality,” with the data suggesting that such smoke pollution was coming from designated smoking rooms. Under current South African law, separate designated smoking rooms must meet certain design requirements, including having separate ventilation. The results from this study of Pretoria restaurants add to the body of scientific evidence demonstrating that designated smoking rooms are ineffective. Moreover, the American Society of Heating, Refrigerating and Air-Conditioning Engineers, an association of over 50,000 business design professionals, has examined the science behind designated smoking rooms and has concluded that “[a]t present, the only means of eliminating health risks associated with indoor exposure [to secondhand smoke] is to ban all smoking activity.”35

There is strong evidence to support the fact that smoke-free policies provide a wide range of public health benefits, including a decrease in tobacco consumption and in youth smoking initiation as well as an overall reduction in heart attacks among other physiological benefits.36 A recent study in Uruguay showed a significant decrease in the incidence of acute heart attacks after the implementation of 100% smoke-free places.37

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Restrictions on smoking in public places can decrease consumption between 4% and 10% and induce some smokers to quit, according to a World Bank analysis.38 Studies have also shown a decrease in smoking in the home following implementation of a smoking ban; contrary to assertions that smoking in the home would increase.39 And a recent study from India confirmed that such results extend to low- and middle-income countries with growing tobacco-induced disease burdens.40 The study found that implementation of smoke-free legislation was associated with a higher proportion of adults reporting living in smoke-free homes. Arguments against smoke-free air are frequently inserted into the public debate by the tobacco industry, which seeks to promote tobacco consumption by ensuring that it will be easy for people to use its product in as many places as possible. It uses allies and front groups, particularly within the hospitality sector, to speak out publicly against smoke-free policies; to demand that smoking rooms or smoking areas be set up as a courtesy to smokers; and to advocate for costly and complex ventilation systems even though these have been proven to be ineffective.

A persistent argument against smoking bans is that they will have a negative economic impact, particularly on the hospitality industry as smokers would patronize restaurants and bars less frequently and profits and jobs would be lost as a result. However, evidence from across the globe, including South Africa, shows that such legislation has not harmed business, and has in some cases had a positive economic impact. The WHO International Agency for Research on Cancer (IARC) reviewed 47 peer-reviewed studies that were based on survey data and found that all 47 studies concluded that “smoke-free policies have either no economic impact or a positive economic impact on the businesses affected by them.”41 Similarly, in a survey of over 1,000 South African restaurants, economists concluded that, overall, the results indicated, “restaurants have not been systematically harmed by the clean indoor air legislation.”42

FCTC Article 8: Parties’ Obligations and Evidence-based Implementiation Guidelines Article 8 of the WHO FCTC requires Parties to adopt and implement effective measures “providing for protection from exposure to tobacco smoke in indoor workplaces, public transport, indoor public places and, as appropriate, other public places.”43 The Guidelines on Protection from Exposure to Tobacco Smoke (“the Guidelines”) were adopted by consensus in 2007 at the Second Session of the Conference of the Parties to assist Parties in meeting their obligations under Article 8.44,45 They are based on the best available scientific evidence and draw from Parties’ experiences in implementing measures to provide protection from exposure to tobacco smoke.46

Smoke-free Provisions The Guidelines establish that for Parties to meet their obligations under FCTC Article 8, they must require 100% smoke-free environments.47 Any measures that fall short of

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creating 100% smoke-free environments – including measures allowing for designated smoking rooms with separate ventilation, air exchange, and other engineering features – do not provide protection against exposure to tobacco smoke.48 Under the Article 8 Guidelines, no exemptions to a 100% smoke-free law “are justified on the basis of health or law arguments.”49 If exemptions must be considered, Parties have a continuing obligation under Article 8 to remove any exemption as quickly as possible and should strive to provide universal protection within five years of the treaty entering into force for that Party.50

FCTC Article 8 requires the adoption of effective measures to protect people from exposure to tobacco smoke in four categories of places:

indoor workplaces;

indoor public places;

public transport; and

outdoor and quasi-outdoor places, where appropriate.51,52

In determining which outdoor or quasi-outdoor places are appropriate subjects of smoke-free legislation, Parties must consider evidence as to the possible health hazards in various places.53 Definitions The Guidelines define several key terms to help shape the scope of protection to be provided. These definitions make clear that protection should extend to all indoor workplaces, including motor vehicles used as places of work such as taxis and ambulances,54 and to all parts of indoor workplaces and public places, including corridors, stairwells, lobbies, etc.55

Duties and Penalties Effective legislation should place legal responsibilities on both affected business establishments (i.e., the owner, manager, or other person in charge of the premises) and individual smokers.56 The Guidelines identify four duties that should be placed on the person in charge of the premises:

a duty to post clear signs indicating that smoking is prohibited;

a duty to remove any ashtrays from the premises;

a duty to supervise the observance of rules; and

a duty to take reasonable specified steps to discourage individuals from smoking in the premises.

The duty placed on the individual smoker is to comply strictly with prohibitions on smoking. For breach of these duties, the Guidelines recommend monetary penalties for business establishments and leave open to Parties whether to impose monetary penalties on individual smokers.57 Fines must be sufficiently large to deter violations,

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with higher fines for businesses than for individual smokers given the resources available to each, and should increase for repeat offenses.58 The Guidelines also leave open the possibility of administrative sanctions and criminal sanctions in addition to monetary penalties, depending on what would be appropriate given each Party’s general practice and legal system.59 Administrative sanctions may include business licensure suspension or revocation and would be “sanctions of last resort.” Inspections and Enforcement The Guidelines urge Parties to consider utilizing an inspections mechanism already in place, if possible, to monitor compliance with and enforce the provisions of smoke-free legislation.60 Use of a pre-existing mechanism reduces costs associated with enforcement by eliminating the need to hire and train large numbers of new personnel.61 Possible pre-existing inspections mechanisms may include: business licensing inspections; health and sanitation inspections; inspections for workplace health and safety; and fire safety inspections. The Guidelines also highlight the ways in which smoke-free legislation is “self-enforcing,” or enforced by the public, noting that in many jurisdictions, citizen complaints are the “primary means of ensuring compliance.”62 To facilitate enforcement by the public, the Guidelines recommend establishing a toll-free telephone number that members of the public can call to report a violation.63 Protecting Against Industry Interference The Article 8 Guidelines also recognize the dangers of tobacco industry interference in smoke-free laws and policies and include important recommendations for Parties on how to counter tobacco industry tactics. These should include “monitoring and responding to tobacco industry activities that undermine the implementation and enforcement of smoke-free legislation, as specified in Article 20.4 of the WHO FCTC” (Principle 6).64

Reflecting Principle 6 of the Article 8 Guidelines, Recommendation 1.2 of the Article 5.3 Guidelines urges Parties to “raise awareness about the tobacco industry’s practice of using individuals, front groups and affiliated organizations to act, openly or covertly, on their behalf or to take action to further the interests of the tobacco industry.”65 There is clear evidence that the tobacco industry has worked through front groups, particularly in the hospitality sector to dilute or delay the implementation and enforcement of smoke-free places. The industry has used front groups to influence legislation at all levels, beginning with, for example, a local restaurant association in Beverly Hills, California (USA) in 1987 and moving up to collaboration with existing international hospitality organizations at both the national and international levels, including the International Association of Hotels, Restaurants, and Cafés (HORECA) and the International Hotel Association (IHA).66

I. SOUTH AFRICA

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South Africa’s history in tobacco control predates its ratification of the FCTC by more than ten years and the country’s success in reducing the consumption of tobacco products provides an example to many other low- and middle-income countries where the tobacco epidemic is still on the rise. Recently, the government and the tobacco control civil society community won a significant victory in ensuring that the 2010 FIFA World Cup had smoke-free spectator venues.

Inside a stadium in South Africa during the 2010 FIFA World Cup.

The Tobacco Products Control Act is the primary legislation governing tobacco products in South Africa.67 The Act was passed in June 1993 and was followed by a series of amendments to the Act and several regulations issued pursuant to authority granted in the Act.68 The law and implementing regulations address many aspects of tobacco control – tax; advertising, promotion and sponsorship, including display of tobacco products; restrictions on smoking in public places; sales to minors; and graphic health warnings on tobacco product packaging, among others. The effects of these progressive tobacco policies have already translated into measurable results. Between 1993 and 2005, per capita cigarette consumption fell by nearly 50 percent.69 However, prevalence rates remain high, particularly among certain demographic groups.70

As a leader in tobacco control, South Africa played a key role in the negotiation of the FCTC.71 South Africa signed the FCTC on June 16, 2003, and the treaty entered into force for the country on July 18, 2005.72 In many respects, South Africa’s policies were FCTC-compliant even before it signed and ratified the treaty.

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A. Current and Future Smoke-free Places Under the present law, smoking is prohibited in public places, which by definition include workplaces and public transport; however, the Minister of Health has the power to issue regulations specifying public places as “permissible smoking areas.”73 Currently, designated smoking areas are permitted in bars, pubs, and taverns, restaurants, hotels, airports, and workplaces, among other places.74 Any smoking area must meet the following conditions:

it may not exceed 25% of the total floor area of the public place;

it must be separated from the non-smoking area by a solid partition;

the ventilation must send air from the smoking room directly outside and the air must not be re-circulated to any other area within the public place; and

the room must comply with three signage requirements.75

Smoking is also permitted in designated areas of passenger ships and designated carriages of passenger trains.76 However, the owner of a public place or workplace has the authority to declare his/her premises as 100% smoke free.77 Smoking is also prohibited in motor vehicles carrying minors under the age of 12 years.78 In addition, the Minister has the authority to prohibit smoking in certain outdoor public places “where persons are likely to congregate within close proximity of one another or where smoking may pose a fire or other hazard” and areas within a certain distance of an entrance, doorway, ventilation intake, or window of a public place.79

Further amendment of smoke-free provisions is underway. Draft regulations were gazetted on March 30, 2012 and the public was invited to submit comments.80 Final regulations have yet to be issued. Under the draft regulations, smoking would be prohibited in all indoor public places and certain outdoor public places; designated smoking rooms would no longer be allowed.81 Additionally, the draft regulations set the distance from an entrance, doorway, ventilation intake, or window within which smoking is prohibited at five meters, with an exception for airport entrances to be 10 meters.82 The draft regulations also specify several outdoor public places where smoking would be prohibited, including:

sports facilities and playgrounds;

outdoor areas of educational, childcare, and health facilities;

outdoor eating or drinking areas;

covered walkways and covered parking areas; and

on beaches where public bathing is permitted, not less than 50 meters away from the closest person swimming in the demarcated area, among others.83

B. Duties and Penalties

South Africa’s legislation includes a duty to post clear no smoking signs and a duty to ensure that no person smokes in the premises, which can be interpreted as including both the duty to supervise the observance of rules and the duty to take reasonable

21

steps to require a person to stop smoking.84 In addition, the person in charge has a duty to ensure that no person under 18 years of age is present anywhere in the premises where smoking is permitted.85 The law, however, lacks a duty to remove ashtrays, although this requirement has been proposed in the draft regulations gazetted for public comment in March 2012.86 A legal duty is also placed on the individual not to smoke in places where smoking is prohibited.87

Clear signage at Cape Town International Airport in South Africa.

Violation of any of these legal duties results in a fine. As advised by the Article 8 Guidelines, 88 the fines placed on business violators (up to R50,000) (exchange rate: 1 US$ = 10 rand) are larger than those placed on individual smokers (up to R500).89 This is an improvement over the previously mandated fines where the fine for non-compliance was R200 for both business violators and individual smokers. The Guidelines recommend that fines increase for repeat offenses,90 which may be possible, although is not required, under the South African law because it establishes a maximum fine value. The law does not, however, include any sort of administrative sanctions against business establishments, such as suspension of licenses, as is advised by the Guidelines as “sanctions of last resort.”91

C. Enforcement

The Tobacco Products Control Act uses the enforcement scheme established by the National Health Act (No. 61 of 2003), combining enforcement of the Tobacco Products Control Act with health inspections conducted by Environmental Health Officers and eliminating the need to create a new inspection system.92,93 Under the National Health Act, health officers are required to conduct routine inspections to monitor compliance and have the authority to conduct environmental health investigations for suspected

22

violations under reasonable grounds.94 The investigation powers of health officers surrounding entry or search of premises are already spelled out under the National Health Act.95 Complaints can be filed with national and provincial departments of health and local municipalities and/or reported to the National Council Against Smoking, a non-governmental organization that also operates South Africa’s Quit Line. Although the toll free number for the Quit Line is not required to be listed on no smoking signs, the number is listed on all packs of cigarettes.

D. Implementation Experience – Public Education

Tobacco prevention and control is one of the pillars of the Healthy Lifestyles Programme, which was initiated in 2006. To date, the Healthy Lifestyles Programme is implemented nationally, provincially, and locally in collaboration with other government departments, the private sector, and non-governmental organizations. Information, education, and communication (IEC) campaigns and events include the commemoration of World No Tobacco Day and other health days that promote the prevention of tobacco use and healthy lifestyle practice. Health literacy programs also include infomercials, public service announcements, and talk shows via electronic media. Advocacy and lobbying efforts are ongoing within and outside the health sector to promote a greater understanding of the need for collaborative action in the implementation of the FCTC in South Africa and the WHO AFRO region.

E. Recommendations for Improvement

Although South Africa has very strong legislation governing smoke-free places, the following improvements are recommended to strengthen the law and bring it into alignment with FCTC Article 8 and its implementing Guidelines:

1. Prohibit smoking in all indoor public places, indoor workplaces, and public transport, without exception. The present law does not provide for 100% protection from exposure to tobacco smoke in indoor public places, indoor workplaces, and public transport as required by FCTC Article 8 and the Article 8 Guidelines. Instead, the law permits designated smoking rooms to be established in a wide range of indoor public places and certain forms of public transport. Although the restriction of smoking to designated smoking rooms created a shift in social norms around secondhand smoke, it did not eliminate exposure to secondhand smoke. Exposure still remains a problem with almost one in five nonsmokers reporting exposure to secondhand smoke at work, and one in three nonsmokers reporting exposure to secondhand smoke other public places.96 This exposure is likely due both to the ineffectiveness of designated smoking rooms and poor compliance in certain sectors of industry.

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2. Expand the list of outdoor and quasi-outdoor places where smoking is prohibited. FCTC Article 8 and the Article 8 Guidelines also require that Parties prohibit smoking in outdoor or quasi-outdoor places, where appropriate based on evidence as to the possible health hazards.97 The current law provides enabling language to prohibit smoking in prescribed outdoor places and within a prescribed distance from entrances, doorways, ventilation intakes, and windows of public places.98 However, the implementing regulations establishing those outdoor places and the distance within which smoking is prohibited have yet to be finalized.

3. Place a duty to remove ashtrays from smoke-free premises on the person in

charge of the business establishment. This improvement has been proposed in the most recent draft regulations.

4. Consider including administrative sanctions, such as business licensure suspension or revocation, among the possible penalties for establishments that repeatedly violate the law governing smoke-free places.

5. Monitor compliance and strengthen enforcement. Monitoring compliance with the law can help identify weaknesses in the enforcement system in place. Once identified, resources can be shifted and additional training can be provided to inspectors to help boost enforcement and overall compliance.

II. SEYCHELLES

The Seychelles was the first country in the African region to ratify the FCTC, having done so in November 2003.99 However, like in South Africa, tobacco control policies in the Seychelles pre-date the FCTC by many years. In the Seychelles, tobacco control has been an important public health issue since the late 1980s and has been the subject of legislation and numerous national surveys of adults 100, 101 and of children102 and community awareness programs.103 Smoking has been banned on public transport since colonial times (pre-1976) and in other public places such as healthcare and educational facilities since the mid-1990s.104 In 2000, the Ministry of Health established a National Committee for Tobacco Control to develop a national tobacco control plan, including drafting comprehensive tobacco control legislation. A strong omnibus tobacco control bill was unanimously adopted by the National Assembly in June 2009,105 after facing several years of opposition, principally from the hospitality industry, in large part due to the smoke-free provisions in the law.106 Key factors underlying the processes that lead to legislation have been highlighted in a case study appearing in an article in The Lancet.107 In addition to strong smoke-free provisions, the law prohibits most forms of direct and indirect tobacco advertising, promotion and sponsorship, and requires graphic health warnings on tobacco product packaging covering at least 50% of the two main sides of

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each pack. The regulations and the prescribed pictures and messages can be viewed on the website of the Ministry of Health.108

A. Current Smoke-free Provisions

The Tobacco Control Act, 2009 provides almost universal protection from exposure to tobacco smoke in indoor public places, indoor workplaces, and public transport. However, contrary to the call for no exemptions in the Article 8 Guidelines, the law provides an exemption for hotel guest rooms. Under this exemption, owners may choose whether to prohibit or restrict smoking in guest rooms. There is no requirement that a certain number of guest rooms be designated as smoke-free. This provision was retained in the draft lawmaking process in the early 2000s because opposition to the legislation was mainly related to fears within the hospitality industry and related tourism ministry that a total ban on smoking in guest rooms could reduce the number of tourists visiting the Seychelles, and tourism is a main source of revenue in the Seychelles. The tourism industry felt strongly that tourists who may pay up to several thousands of US dollars per night in luxury hotels should be entitled to choose to smoke in their private rooms. In fact, the legislation was approved by the ministers’ cabinet, after several failed attempts, once several countries in Western Europe, which account for the majority of tourists visiting the Seychelles (primarily from France, Italy, and the United Kingdom), adopted strong smoke-free policies. It could then be expected that tourists from these main markets would be accustomed to strong no smoking policies. However, even in these “early” times (early 2000s), and more so currently, many hotels in the Seychelles belong to large hotel companies which have strong internal no smoking policies for guest rooms, whether or not smoking in guest rooms is prohibited under national law. In practice, therefore, most hotels do not allow smoking in guest rooms. Nevertheless, under paragraph 24 of the Article 8 Guidelines, the Seychelles has a continuing obligation to remove the exemption for hotel rooms as quickly as possible.109 The law extends the prohibition on smoking to some outdoor places as well, as proposed in the Guidelines.110 The law accomplishes this by defining “public place” to include outdoor premises of health institutions, educational institutions, and children’s daycare centers.111

B. Duties and Penalties

The law imposes legal duties on the person in charge of the premises to post signs indicating that smoking is prohibited and to take steps to require a person to stop smoking,112 both of which are called for by the Article 8 Guidelines.113 However, the law fails to impose a duty to remove ashtrays. Regulations issued in 2011 require the no smoking signs to include the no smoking symbol and a text warning that smoking is prohibited in one of the official languages.114 Penalties for violation of the duties

25

imposed include fines and/or imprisonment. As detailed in the Guidelines, the penalties increase for repeat offenses (exchange rate: 1 US$ = 11 Seychelles rupees):

Fines of between R5000 and R10000 or imprisonment for up to two years for a first offense;

Fines of between R10000 and R15000 or imprisonment for up to three years for a second offense; and

Fines of between R15000 and R20000 or imprisonment for up to three years for subsequent offenses.115

Individual smokers have a duty not to smoke where prohibited and are subject to fines and, possibly, imprisonment.116 As with the other penalties imposed and pursuant to the Guidelines, the penalties increase for repeat offenses:

Fines of between R1000 and R5000 for a first offense;

Fines of between R5000 and R8000 for a second offense; and

Imprisonment for up to three years for subsequent offenses.117

The law aligns with the Guidelines in that fines for individual smokers are less than fines for persons in charge of business establishments.

Signage requirements as prescribed in the Tobacco Control (Smoke-Free Notice) Regulations, 2011. Signs must be in one of the official languages of the Seychelles – English, Seychellois Creole, or French.

C. Enforcement

The law charges the Minister of Health with responsibility for administration of the law generally, but does not impose a specific duty to inspect or enforce the law.118 The Minister has the power to delegate this authority. In fact, the Ministry of Health has recognized the need for further regulations surrounding enforcement, specifically prescribing who has the power to inspect and how to conduct those inspections.119

An initial study of implementation and compliance in the period immediately following the law’s enactment indicates that the smoking ban was “generally well implemented,” although workers reported being reluctant to intervene when a person was smoking.120 This reluctance may be due, in part, to the fact that only 41% of workers reported

26

having received training on implementation of the ban. The study was also conducted during the “grace period” between the law’s enactment and the imposition of penalties on offenders, which may also have affected the willingness of managers and employees to intervene. Overall, no smoking was observed in over 97% of the venues surveyed. In over 70% of the venues surveyed, patrons indicated that they had not seen smoking in those venues in past weeks. Awareness of the ban was also high – over 85% of patrons and 100% of both managers and employees were aware of the ban.

D. Implementation Experience – Public Education

Prior to the law coming into effect, the Ministry of Health conducted a multi-faceted education campaign in order to educate the public about the ban.121 Several spots about the smoking ban were broadcast on national television and radio. Leaflets were distributed and over 5,000 letters were mailed to workplaces and public places. Even after the law’s entry into force, the government has continued to use opportunities such as the 2011 Indian Ocean Island Games to educate the public about the ban and the benefits of a smoke-free society through television advertisements featuring sports celebrities and by providing no-smoking signs to be displayed at the Games’ venues.122

The 2011 Indian Ocean Island Games mascot displaying a sign

to remind spectators that the games are smoke-free.

Health education awareness campaigns related to tobacco use are ongoing, including high profile awareness programs organized nationally on the occasion of World No Tobacco Day each year and many programs on national radio and TV throughout the year. These programs reference the national tobacco control legislation and emphasize the need for enforcement of the law.

E. Recommendations for improvement

Although the Seychelles has very robust measures governing smoke-free places, the following improvements are recommended to strengthen its legislation and bring it into alignment with FCTC Article 8 and its implementing Guidelines:

27

1. Prohibit smoking in all indoor public places, indoor workplaces, and public

transport, without exception. The present law does not provide for 100% protection from exposure to tobacco smoke in indoor public places, indoor workplaces, and public transport because it allows an exception for hotel guest rooms. It is important to remember that hotel guest rooms are workplaces for some people. It is critical that workers in the hospitality industry, in addition to hotel guests, are protected under the law.

2. Expand the list of outdoor and quasi-outdoor places where smoking is prohibited.

FCTC Article 8 and the Article 8 Guidelines also require that Parties prohibit smoking in outdoor or quasi-outdoor places, where appropriate based on evidence as to the possible health hazards.123 The law currently prohibits smoking in outdoor areas of health institutions, educational institutions, and children’s daycare centers. Policymakers should consider extending the prohibition to additional outdoor places in order to expand protection from exposure to tobacco smoke.

3. Place a duty to remove ashtrays from smoke-free premises on the person in charge of the business establishment. A duty to remove ashtrays helps shift the social norms around smoking and can aid in self-enforcement of the law.

4. Consider including administrative sanctions, such as business licensure suspension or revocation, among the possible penalties for establishments that repeatedly violate the law governing smoke-free places.

5. Specify who has the authority to conduct inspections and outline their powers. At the African Regional Meeting on Implementation of the WHO Framework Convention on Tobacco Control in October 2012, the focal point for tobacco control within the Ministry of Health recognized the need to clarify enforcement authority under the law.124 It is also important that enforcement officers receive training on their duty to conduct inspections and the scope of their powers.

6. Monitor compliance and strengthen enforcement. Monitoring compliance with the law can help identify weaknesses in the enforcement system in place. Once identified, resources can be shifted and additional training can be provided to inspectors to help boost enforcement and overall compliance. A study of compliance under the law was conducted immediately following implementation; a follow-up study should be undertaken now that the law has been in place for several years.

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III. CONCLUSION

Scientific evidence indicates overwhelmingly that smoke-free policies, and in particular the creation of 100% smoke-free environments, positively influence attitudes, behavior and health. They assist greatly in the process of denormalizing smoking in society, of encouraging adults to quit smoking and of preventing young people from acquiring the addiction to cigarettes and other tobacco products. South Africa and the Seychelles both have a rich history of tobacco control, almost unique in the low- and middle-income countries of Africa. It is clear that both countries have exhibited the necessary political will not only to draft legislation for smoke-free environments but also to exert that will through proper implementation and enforcement of their laws. In so doing, both governments demonstrate clearly to their own citizens and to the governments and peoples of Africa, their knowledge and acceptance of the dangers associated with tobacco smoke as well as their acknowledgment that there is an increasing desire for clean air on the part of the general public. They lead by example and their example can, and should, be followed.

Not only have both countries provided smoke-free indoor public places, a general norm in tobacco control, but they have extended the prohibition on smoking to certain private places, like motor vehicles where young children are present, and to an increasing number of outdoor places as well, in line with FCTC Article 8 and the Article 8 Guidelines. Unfortunately, however, neither country has, to date, managed to achieve the desired international and WHO FCTC standard of 100% smoke-free environments in all indoor public places, indoor workplaces, and public transport. The Seychelles continues to provide an exemption for hotel rooms, and this is of particular concern as tourism is a significant part of the economy of the Seychelles. South Africa’s 2007 legislation mandates the Minister create 100% smoke-free environments and regulations were gazetted in March 2012 but final regulations that would translate the policy into action have yet to be issued.

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