British American Tobacco (BAT) Kenya faces a constitutional petition seeking Sh4.5 billion from the cigarette maker for reportedly unlawfully promoting its VELO nicotine pouches and breaching tobacco control laws.
The suit seeks Sh1.5 billion for a public health fund as compensation for damage to public health, tobacco cessation, public health education and treatment of nicotine addiction among young persons and Sh3 billion in punitive damages, alongside a product recall.
The petition, filed by 23-year-old Vivian Anemba, also accuses health regulators and state prosecutors of failing to enforce tobacco control laws against the NSE-listed company.
VELO are smokeless, tobacco-free pouches containing nicotine, flavouring and plant-based fibres. Users place them between the upper lip and gum, where nicotine is absorbed through the mouth.
The petition was lodged at the Constitutional and Human Rights Division of the High Court, Nairobi. It seeks interim orders stopping the promotion of VELO nicotine pouches, saying the company unlawfully targets young consumers through entertainment, peer promoters and the retail sale of individual nicotine pouches.
The petition names BAT Kenya, the Tobacco Control Board, the Health Cabinet Secretary, the Director of Public Prosecutions (DPP) and the Attorney General as respondents.
Justice Gregory Mutai directed the petitioner to serve the case on the respondents within three working days.
The respondents have been given 14 days to file their responses before the matter returns to court on October 8 for compliance and more directions.
Apart from the Sh4.5 billion claim, the petition wants the court to order BAT to deposit Sh500 million as security, pending determination of the case and Sh10 million as security for costs.
It also seeks permanent orders stopping VELO promotions, compel BAT to recall and repackage the products, direct the Tobacco Control Board to audit the company's marketing practices and require the DPP to investigate and prosecute BAT, its directors, officers and promoters for offences under the Tobacco Control Act.
According to Ms Anemba, BAT's marketing campaign breaches provisions prohibiting tobacco promotion, lifestyle advertising, promotional inducements and sale of tobacco products in quantities below the legal minimum.
She says BAT marketed VELO at entertainment venues in Syokimau in June and July, used university students to recruit young consumers and sold nicotine pouches individually for Sh30 to Sh40.
“I took photos of the promoters, the branded vehicles, the product displays, the VELO packaging and the retail sale of pouches. The activation was countrywide,” she says, adding that the campaigns coincide with the university vacation period and that BAT deploys promoters when students are idle.
Her lawyer, Allan Mulama, says in the petition that BAT's activities amount to "ground activation campaigns, commission-based promoter schemes, branded venue infiltration and coordinated retail sale of individual VELO pouches" that violate the Tobacco Control Act and constitutional rights to health, consumer protection and protection of children.
