How BAT lobbied Health ministry to weaken nicotine pouch warnings

Tobacco health warnings must cover a third of the package in Kenya but Health ministry agreed that Velo could be sold with a smaller warning. PHOTOS | COURTESY

The Kenyan government weakened health warnings on nicotine pouches after British American Tobacco (BAT) threatened to pull investment from a new factory it had promised to build in the country’s capital, an investigation by The Examination, Africa Uncensored and The Guardian has found.

Letters between BAT and the Ministry of Health show the government yielded to the tobacco giant’s demand to sell Velo with significantly smaller health warnings and without mentioning potentially cancer-causing toxicants present in the products. The letters are among a series of documents obtained by The Examination that reveal the industry’s influence over policy in the country.

Existing tobacco regulations in Kenya say that such labels must cover a third of the front of the package. BAT lobbied to reduce the size of the warning, the letters show. The Ministry of Health agreed that Velo could be sold with a small warning explaining that “this product contains nicotine and is addictive.”

In the UK, warning labels also inform consumers that nicotine pouches are “not risk free” because they contain traces of tobacco-specific nitrosamines (TSNAs), cancer-causing compounds also present in cigarettes.

Velo pouches release a hit of nicotine when placed between the lip and gum and have gained popularity among Kenya’s youth. Videos of young Kenyan TikTokers using Velo have amassed millions of views, and academic research shows it is being sold in schools.

A container of the Nicotine sachets known as LYFT which was banned by Kenya’s Health Ministry on October 7, 2020. PHOTO | SHUTTERSTOCK

A draft report by a government-appointed task force, leaked to The Examination, accuses tobacco companies of targeting young people. Fearing a whole new generation will become addicted to nicotine, and that the pouches might be a gateway into smoking, the task force is now calling for strict regulation of the products, while other politicians are asking for an outright ban.

Read: Blow for BAT as Health CS Kagwe declares Lyft illegal

BAT’s role in shaping health warnings in Kenya comes amid an industry-wide drive to sell more “smoke-free” — yet still addictive — nicotine products across the globe. To be successful, tobacco companies must overcome, or work around, deep distrust over their role in spreading mass death through cigarettes, and a landmark global health treaty that sets reducing industry influence over public policy as its central aim.

The financial stakes are high. The global market for nicotine pouches, just one of many “smoke-free” products, was $3 billion in 2021. BAT views Kenya as one of its key “test markets” in low and middle income countries, according to its own financial presentations, and plans to make the country its base of operations for a rollout of the product across southern and eastern Africa.

Read: INTERVIEW: BAT sees a future through the smoke on nicotine pouches

But research hasn’t kept up with the industry’s ambitions. It isn’t clear how nicotine pouches affect human health over the long term.

The letters obtained by The Examination show BAT’s success in shielding its product from the warnings and restrictions slapped on cigarettes. In September 2021, BAT’s managing director wrote to the Ministry of Health asking it to allow Lyft (as Velo was called when it first entered the market) to be sold with a warning covering just 10 percent of the front of the pack. It said the “resumption of factory operations” hinged on this smaller warning being approved.

“Your positive consideration of this request will allow us to operationalise our factory,” the letter said. The Ministry of Health agreed to allow warnings covering 15 percent of the front of the pack.

In creating this regulatory carve-out for the company, the Health ministry may be in breach of the tobacco treaty, known as the Framework Convention on Tobacco Control. Joel Gitali, the head of the Kenya Tobacco Control Alliance, told The Examination that under the treaty “the industry is not supposed to take part in policy development.”

In a statement, a BAT spokesperson told The Examination that the product’s labelling provides “important safety information” and that the language clearly states that all nicotine pouches are for adults only and should “never be used by those who are underage.” The company said the science of nicotine pouches is different from that of tobacco products, and this needs to be reflected in regulations. “Like many other companies, we contribute to the public debate on issues that are important to our consumers, in particular tobacco harm reduction,” the spokesperson said.

The Ministry of Health did not respond to requests for comment.

Velo are white pouches filled with nicotine, flavouring and plant fibers that are placed between the lip and gum to release a hit. They are inspired by snus, the Swedish moist tobacco product, but are tobacco-free. The pouches come in a range of flavours including “tropic breeze,” “urban vibe” and “ruby berry.” In Kenya, Velo cost around Sh350 for a small can containing 20 pouches, making them affordable for Kenya’s middle class.

Kenya is developing certification standards for processing and distributing non-combustible nicotine products. FILE PHOTO | SHUTTERSTOCK

Velo are the only nicotine pouches that can legally be sold in Kenya, though others are smuggled in illegally. On TikTok, some Kenyans have filmed themselves feeling sick after trying the products for the first time.

The science around the health effects of nicotine pouches is still emerging, and there is a lack of independent research as most of the studies have been commissioned by the tobacco industry. Industry research says the products expose users to less toxicants than smoking, but concludes more studies are needed to determine if they reduce the risk of disease.

Nicotine pouches can contain extremely high levels of nicotine and deliver the same amount of nicotine into the bloodstream as a cigarette. The long-term effects of nicotine include high blood pressure and increased risk of stroke and heart failure. Some studies also show nicotine can damage developing babies’ brains and adversely affect the development of adolescent brains.

The few independent studies that have been conducted on nicotine pouches have also revealed the presence of cancer-causing TSNAs in most brands. These are compounds that form naturally when tobacco is processed, in this case when nicotine is extracted to add into the pouches.

BAT’s own research has found that its Velo nicotine pouches contain the two most dangerous TSNAs, though it says they are not found in “quantifiable” levels.

Scientists from Germany’s Federal Institute for Risk Assessment said TSNAs potentially pose a health risk even at very low, not quantifiable, amounts. Writing in a study, they said nicotine manufacturers should improve their processes to make sure carcinogenic substances such as TSNAs are not present.

Nicotine pouches are quickly evolving products that vary from one another and likely contain a number of other chemicals which may be cancer-causing, says the American Cancer Society.

BAT said that nicotine pouches have a similar safety profile to nicotine replacement products such as lozenges and gum.

British American Tobacco first launched its nicotine pouches into the Kenyan market in 2019.

The company obtained its license to sell the products through the Pharmacy & Poisons Board, which regulates drugs and medicines. Under that license, the pouches, then sold under the brand name Lyft, were only to be sold in drug stores.

That provision was ignored. BAT and its vendors sold the pouches online and in retail stores. BAT advertised the pouches through social media influencers and giveaways at universities. Their popularity with young people, including children, soared.

A Kenyan DJ and a TV presenter were among the influencers hosted by BAT at the 2019 Grand Prix Formula One motor racing event in Abu Dhabi, as part of the company’s sponsorship of the McLaren F1 team. BAT paid the social media influencers to post hashtags, such as #GetLyfted, #LyftxMcLaren and #LyftKenya, to followers.

In September 2020, the Ministry of Health wrote to the Pharmacy & Poisons Board challenging its decision to license Lyft, which it said was also being sold in vending machines, in violation of the law. BAT told The Examination it has never sold its products in vending machines.

The ministry asked for a comprehensive report into the circumstances that led to the Pharmacy & Poisons Board granting BAT a license to sell its pouches in the first place. 

The Board wrote to BAT Kenya in October 2020, informing the company that Lyft should be sold only in pharmacies and be withdrawn from retail stores and online marketplaces. It also told BAT that the product could not be advertised to the general public.

In response, BAT temporarily suspended Lyft sales. It told investors it would “continue to engage with the local authorities.”

In January 2021, the Ministry of Health wrote to inform BAT that the pouches would now be regulated under Kenya’s existing tobacco regulations, which require health warnings that cover about a third of the front of the packaging and half of the back. Before BAT suspended sales of Lyft, the packages were being sold with significantly smaller warnings.

BAT fought against the bigger warnings, The Examination found.

“This is when heavy lobbying now started, letters were written and many meetings held in Afya House,” a government public health official told The Examination under the condition of anonymity because they were not authorised to comment officially. 

Read: BAT rejects Health ministry’s guide on nicotine pouches

The key breakthrough came for BAT shortly after it wrote to the Ministry of Health in September 2021 and threatened to pull investment from a new nicotine pouch factory it had pledged to build in Nairobi, which would serve east and south Africa.

BAT Kenya’s managing director Crispin Achola told then Cabinet Secretary for Health Mutahi Kagwe in the letter that “our resumption of factory operations and the sale of Lyft in Kenya hinges on the provision of appropriate text health warnings”.

Read: Lyft ban puts at risk Sh2.5bn BAT plant

In the same letter, Mr Achola drew Mr Kagwe’s attention to a subclause in the Tobacco Control Act of 2007 that provides the CS discretion to alter the health warnings on products via a special directive.

Mr Achola wrote that if the Health Ministry agreed to the company’s demands, which included smaller health warnings and no mention of any toxicants other than nicotine, then BAT would be able to press ahead with the opening of the factory. 

BAT initially pledged more than $15 million to build a new factory for the nicotine pouches.

The Examination could not determine whether BAT has begun construction on the factory. Activists say a section of BAT’s existing cigarette factory has been converted to produce the nicotine pouch product instead.

Mr Achola told the Business Daily that about 40 percent of the pledged investment has been set aside for the marketing and distribution of the nicotine pouches and “testing” of the plant.

Read: BOSS TALK: BAT Kenya MD on navigating taxes

Less than a month after BAT made its threat about the investment, Mr Kagwe gave BAT permission to cut the size of the health warnings on the nicotine pouch packaging in half and stated that the only health warning needed was “this product contains nicotine and is addictive” with no mention of the presence of the potentially cancer-causing toxicants.

As a result, the products were given the green light to re-enter the market in June 2022. This is when the pouches, which had been rebranded from Lyft to Velo, flooded back onto the Kenyan market.

Read: Nicotine pouches sales up, says BAT

BAT was given special dispensation to sell nicotine pouches without standard-sized health warnings until July 2023.

Since the expiration of this special exemption, the tobacco giant wrote to the Ministry of Health again in August to request that it maintain the exemption indefinitely, “pending the development of specific regulations on this product and related categories.”

The Ministry of Health has not yet responded to BAT about extending the exemption, which means any pouches sold with smaller warnings are technically in violation of the law.

As of January 2024, BAT is not manufacturing nicotine pouches in Kenya. In October and November 2023, multiple shipments of nicotine pouches were impounded at the Jomo Kenyatta International Airport. The Examination has not been able to confirm why they were impounded. In total, almost twenty tonnes of the product have been seized.

Read: BAT starts rollout of nicotine pouches

British American Tobacco claims Velo pouches are targeted only at adult smokers or nicotine users, but experts say the products are popular among young Kenyans. This is despite smoking rates being low in that age group. (The most recent National Survey on the Status of Drugs and Substance Use in Kenya found that only 3.2 percent of people age 18 to 24 have smoked in the past month.)

Data on Velo sales is not made publicly available by BAT or the Kenyan government, meaning the number of customers, including the number of young people buying the product, is unknown.

Preliminary data from an unpublished survey by Cyprian Mostert, assistant professor of global health economics at Aga Khan University’s Brain and Mind Institute in Nairobi, indicates that the nicotine pouches are mainly used by Gen Z, typically defined as people born between 1997 and 2012. The pouches have become especially popular among the urban youth of Kenya, and particularly among girls, the research indicates.

“Teachers told us they [nicotine pouches] have already infiltrated the schooling system in Kenya, especially the secondary schools, there is a very, very drastic upswing into those cohorts because they are marketed as something cool,” Mr Mostert said. 

“Around 70 percent of this product is traded online. There are ‘pushers,’ illegal guys operating at a community level, that are able to push these products directly to schools, and security guards that are working in many schools are also part of the pushers and introducing it to the children.”

Boda boda riders in Kenya are also pushing the products, Mostert said. Teachers have faced disciplinary hearings for selling nicotine pouches to children, Mr Mostert said.

Traders often market the product as something that can make children feel calm, he added.

In one video that has received almost a quarter of a million views, a young TikToker says Velo “improves eyesight, helps with weight loss…and after using Velo you look and feel so calm, almost lifeless.”

Mr Mostert fears young people who get hooked on Velo might later take up smoking. 

To ensure its products are not used by people who are underage, BAT told The Examination that it “works with retailers to educate them on minimum age laws and conduct spot checks to ensure minimum age information notices are in place,” a spokesperson said.

The Health CS commissioned the task force debating the legality of nicotine products. The task force is considering new laws to regulate them separately from cigarettes and labeling that includes possible health risks.

Joel Gitali, chair of the Kenya Tobacco Control Alliance, says the government is at a “crossroads” where it has to choose between public health and the economic benefits BAT claims that the nicotine pouches will bring to Kenya.

“Kenya is being misused and we have given these people a very good landing ground where they can operate and do anything,” he said. “We are making BAT feel that its home in Africa is Kenya, which is something that is so bad for the region and to the entire generation that we are subjecting to this kind of addiction. It must stop.”

The story was published by The Examination, Africa Uncensored and The Guardian.

With additional reporting by Edwin Okoth