Why the adult age under tobacco control is 21 years

Why the adult age under tobacco control is 21 years

By Elsa Zawedde

Back Ground

The Tobacco Control ACT defines a child as a person under the age of 21 years. The significance of this definition is that any person deemed a child is prohibited from growing, selling, harvesting and manufacturing or being involved in the chain of growth and the consumption of tobacco related products. This difference from the standard set by the Constitution and other laws is the basis of the article.

Standard definition of a child in the law

The standard in Uganda’s legislation seems to be uniform as the majority of the laws ascribe to a child being one below the age of 18. The standard is set by Article 257(c) of the 1995 Constitution Uganda that defines a child as a person below the age of 18 years.  The Children’s Act Cap 59, The Contracts Act 2010 and the Employment Act under their Sections 2 respectively take the position that a child is one below the age of 18 years. Considering the established standard in the Constitution, as the Supreme Law of Uganda all other laws should be brought in conformity with the Constitution as stated in Article 2 of the Constitution. This means that the Tobacco control Act would ordinarily ascribe to the definition of a child as one below the age of 18 years. Therefore, as far as the Ugandan legislations are concerned they seem to saliently recognize a child as one below the age of 18 years not withstanding minor adjustments made when it comes to child being employed under Article 34(3) of the Constitution provides for Children being one below the age of 16.

It would be inept to look at the child and tobacco without having the benefit of the International standard of the definition of a child. The Convention on the Rights of the Child  (here in after referred to as CRC) was adopted by the United Nations General Assembly in 1990 and it defines a child under Article 1 as person who is below the age of 18 years.

Protection accorded to children in other laws

As practice has been in Uganda’s previous legislation “children” have been prohibited from engaging in the consumption of particularly harmful products to health. Pursuant to Sections 19(1) and Section 9 of The Liquor Act Cap 93, they restrict the participation of a person below the age of 18 years in engaging himself in distribution, supervision, selling and buying of intoxicating liquor, beer and Enguuli as stated there in.

The standard Parliament and the Legislators follow when deciding matters that have a bearing on children is the best interests of the Child. At the national level Article 34(1) of the Constitution and Section 3 of the Children’s Act Cap 59 articulates this clearly by stating that the guiding principles for decisions concerning the welfare of children are that the best interests of the child shall be considered in matters of policy.

Like the principles stated in the Constitution and Children’s Act, Article 3 of the CRC, makes providence of the best interests of the child as the basis for which institutions, authorities and legislative authorities will premise as they handle matters concerning the child. Article 4 of the CRC provides that states shall apply administrative and legislative measures to protect the child’s interests. It is under this premise that the Tobacco control Act is subject to the standard of the best interests of the child.

Justification for the Protection in the Tobacco Control Act

Before scrutinizing whether the minimum age of 21 is justifiable for consumption of Tobacco related products. It is important to note that because of the enormous potential harm of tobacco to children from its use and mere exposure, states have to undertake, a duty to take all necessary legislative and regulatory measures to protect the interests of the child. In a report published by the World Health Organization (WHO) in 2001 by Safir Syed ;

Around 4 million people die prematurely from tobacco related illnesses each year, with the death toll expected to rise each year to 10 million people by 2030. Many of tobacco’s future victims are today’s children because it begins during adolescence and continues through adulthood… If current trends continue, 250 million children alive today will be killed by tobacco… Estimates are made that 700 million, or almost a half of the world children, breathe air polluted by tobacco smoke.

If the statistics by WHO are anything to go by Tobacco is a uniquely dangerous drug that should not be treated as a normal consumer good. This justifies the stringent measures on age than the other existing law.

Considering the fact that Tobacco is a uniquely dangerous drug that should not be treated as a normal consumer good, the requirements under the Constitution, Children’s Act and the Convention on The Right of the Child the premise that the best interests of the child should be the corner stone of any decision is upheld in the Tobacco Control Act.

Michael Bloomberg the Mayor of New York who has led the campaign to prohibit the use of tobacco related products in New York, stated  “21 is the right age limit by which one can take cigarettes because this would discourage people from being addicted In the first place since the earlier the people smoke, the more prone they are to get addicted.”(As reported by the New York Times, 30/09/2014)

A Child being described as a person below the age of 21 years for the purposes of the Tobacco Control Act is therefore reasonable and demonstrably justifiable. Unlike other commodities like Intoxicating liquor, tobacco’s addictive nature as a substance is dangerous to the young people, and the less exposure guaranteed by legislation in prohibiting the engagement in any tobacco related activities to persons below the age of 21 is a reasonable caution that will leaves our country more healthier with a more promising future.

One cannot over emphasize the need for conformity with the Constitution, however meticulous attention ought to be given to the unique nature of tobacco as a harmful substance. Therefore in acutely striking a balance between the health threat that tobacco is to our Country and the standard of who a child is in Article 257(c) of the Constitution: I appreciate the drafters of the Tobacco Control Act for the unique protection accorded to children through defining a child as a person below the age of 21 years for the purposes of Tobacco consumption and the Tobacco Control Act.

What does the recent ruling on tobacco control regulations mean for the fight against NCDs in Kenya?

What does the recent ruling on tobacco control regulations mean for the fight against NCDs in Kenya?

Kenya is currently celebrating 10 years since the enactment of the Tobacco Control Act 2007, developed following Kenya’s ratification of the Framework Convention on Tobacco Control (FCTC) in 2004 (link is external). Although the Act has been operational since 2007, full realisation of the gains intended has been elusive due to delays in implementing its associated regulations. The Tobacco Control Regulations 2007 are meant to be subsidiary laws intended to put into effect specific provisions of the Tobacco Control Act 2007 – but the tobacco industry have consistently fought legislation, realising that the regulations would ultimately impact on sales of their health harming products.

Tobacco in Kenya – what’s the problem?

Tobacco is the most preventable cause of death globally and has been singled out as one of the major risk factors for Non-Communicable Diseases (link is external) (NCDs). Owing to this, a global NCDs agenda of reducing up to 30% of prevalence of tobacco use from people 15+ years by 2030 was set within the Sustainable Development Goals (link is external). According to Kenya STEPwise, a survey conducted in 2015 to collect information on the risk factors for NCDs, it is estimated that up to thirteen percent (13%) of Kenyans currently use some form of tobacco products (link is external). About ten percent (10.1%) of this population uses smoked tobacco products such as cigarettes, pipes and shisha, while the remaining three percent (3%) use smokeless tobacco.

Furthermore, it is estimated that nearly twenty-one percent (20.9%) of Kenyans are exposed to second hand smoke at home and work. These are indeed alarming statistics given the disturbing burden of NCDs in Kenya. On Thursday January 5, 2017, The Acting Director of World Health Organization’s (WHO) NCD cluster, and WHO’s Regional Director for Africa, Dr Matshidiso Moeti decried the increasing burden of NCDs in Africa stating that heavy reliance on tobacco use was among the major causes of the rising NCDs and related deaths in the continent (link is external).

Kenyan Tobacco Control Regulations: a major boost in the fight against NCDs

The Tobacco Control Regulations 2014, give a greenlight to regulation of packaging and labelling of tobacco products manufactured locally or imported. Tobacco companies in Kenya are mandated by the regulations to print pictorial health warnings (PHWs) on both sides of their cigarette packs. Having explicit graphical/ pictorial health warnings depicting health effects of tobacco use have been lauded (link is external) as an effective way of encouraging tobacco smokers to quit smoking and discouraging others from starting the habit.

Involuntary exposure to second hand tobacco smoke is also a major concern to the fight against NCDs. With nearly twenty one percent of Kenyans involuntarily exposed to second hand tobacco smoke, there has been a sharp rise of NCDs among children, people living with disability and those living with AIDS. Effective implementation and enforcement of the Tobacco Control Regulations will protect the general public against exposure to second hand tobacco smoke in public places, and distinct private places where children and other vulnerable people could be exposed to tobacco smoke.

NCDs must be taken seriously and resourced sufficiently to maintain momentum

Incapacitation in the fight against NCDs in Kenya and in Africa has largely been attributed to low prioritisation of NCDs within the national agenda. This has in turn affected how resources are being allocated to NCD programs in Kenya, as well as the rest of the continent.

The Tobacco Control Regulations 2014, shine some rays of hope. In a quest to curb the rising negative health effects of tobacco use, these regulations have strongly highlighted provisions for the tobacco companies to justifiably take on the responsibility of dealing with these effects and costs to society. The regulations outline strong provisions for the tobacco companies to mandatorily contribute annually to the Tobacco Control Fund (TCF), through which the Ministry of Health is able to set up structures to support cessation programs, as well as conducting research especially on chronic conditions resulting from heavy reliance on tobacco use.

The tobacco industry – implicated in disease and death, but still fighting for their own survival

The tobacco industry sees the regulations as a threat to their business and income streams, which have increasingly focused on growing markets in Africa. Since before the implementation of the Tobacco Control Act of 2007, the industry has fought legislation in court, a test of our government’s financial resources, commitment to health, and resilience.

On Friday February 17, 2017 a major ruling was made by the Kenya’s Court of Appeal upholding the Tobacco Control Regulations 2007 and disqualifying an appeal case lodged by British American Tobacco (BAT) and Mastermind Tobacco Kenya Limited. Earlier BAT had prevented the Tobacco Control Regulations 2014 from coming into effect in June 2015 through a legal process at the High Court challenging the constitutionality of the regulations. In March 2016, the High Court made a judgement in favour of the regulations which BAT opted to appeal, faulting the judgement by the High Court. They just would not sit back and accept the rule of court, and health advocates again ramped up in efforts to resist the appeal and ensure that the right to health was protected.

The fight against tobacco and NCDs can’t stop with this latest ruling – there’s much to be done

For all these gains to be enjoyed, there needs to be

  1. Political goodwill to fully implement general tobacco control policies in Kenya;
  2. Unwavering commitment by people charged with the responsibilities of overseeing compliance and enforcing the regulations; and
  3. Consistent monitoring and reporting structures on the achievements made in the implementation and enforcement of the regulations.

We hope that BAT’s appeal was the industry’s final assault on regulations designed to align with the FCTC, and in doing so protect the health of Kenyans today and into the future. We recognise the determination of the tobacco industry to disrupt and interfere using any means to protect their business. We stand vigilant to hold them at bay, and support the government and health sector in efforts to prevent tobacco related harm in Kenya. We also hope that our story inspires other governments and health advocates taking on the tobacco industry in court – it can be done, indeed – it must.

 

About the Author

Achieng Otieno (@sachieng (link is external)) is Communication and Digital Advocate for Kenya Tobacco Control Alliance (KETCA) (link is external) (@KETCA1 (link is external)). KETCA is a not-for-profit organisation that brings together civil society organisations advocating for tobacco control in Kenya. KETCA is a member of the NCD Alliance in Kenya (NCDAK).(link is external) The victory over BAT and Mastermind Tobacco were a result of collaborative effort from various stakeholders within the country and beyond, and for that KETCA expresses appreciation to supporters.

Tobacco Control Act: See Who’s Demanding Implementation?

Tobacco Control Act: See Who’s Demanding Implementation?

The Uganda Tobacco Control Act came into force on 19th May, 2016. Since then, there has been mass sensitization in billboards, radio shows, newspaper articles and social media campaigns. Implementation of this law however requires the Ministry of Health to write regulations upon which enforcement is to be based. Tobacco Control Ug

In the meantime, many bars in Kampala and its surburbs continue to sell “Shisha,” a popular among young people, water pipe tobacco whose sell, distribution and therefore consumption are completely banned in the Tobacco Control Act.
Tobacco Control Ug

Godfrey Kutesa has the past week taken matters into his hands, so to say. This young man and several of his friends took to the streets and city roundabouts holding placards of messages about tobacco use; also on placards were messages demanding that the law be implemented to save lives. They have gone ahead to visit some schools to speak about the dangers of tobacco. At City High School’s assembly yesterday, they encouraged students to be responsible for their own lives and stay away from cigarettes and shisha which have negative health implications like lung cancer on users.  Tobacco Control UG

Website Security Test