On 6^th March 2024, the Ministry of Interior issued directives under the Preservation of Public Security Act to curb the manufacture and sale of illicit alcoholic products and abuse of psychotropic  substances. The directives will affect the operations of manufacturers, distributors, distillers and traders of alcohol or alcoholic beverages and some psychoactive substances. The directives also place obligations on various regulators as well including the Kenya Bureau of Standards (KEBS), the Kenya Revenue Authority (KRA), The Anti-Counterfeit Authority (‘ACA’), National Authority for the Campaign Against Alcohol and Drug Abuse (‘NACADA’) and the National Police Service(‘NPS’).

Some of the key directives affecting manufacturers, importers, traders and distributors are as follows;

1. All valid licenses issued to manufacturers and distillers of alcoholic products and beverages by the KRA and KEBS have been suspended with immediate effect. KRA and KEBS shall conduct fresh vetting for all their licensees prior to re-issue of fresh licenses within 21 days.
2. Future applications for licenses for alcoholic products  shall require applicants to demonstrate quality control measures within their manufacturing  facilities operated by a competent laboratory analyst. Further, manufacturers will have monthly reporting obligations on quality control to KEBS.
3. Manufacturers  of alcoholic products and beverages will be required to keep accurate records of the traders and distributors on their supply chain. Further, manufacturers are required to ensure that all their products have sufficient information that can enable the product to be traced to their respective factories.
4. Manufacturers are directed to supply enforcement teams within county governments with the geo-location and physical details of their licensed premises. The directives state that any products found in any other premises whose location has not been supplied as per the directives would be deemed counterfeit and liable for destruction.
5. KEBS is required to review and enhance the minimum quantity of alcoholic products from 250 ml to 750 ml within 60 days which would phase out the manufacture of alcoholic drinks and beverages below 750 ml.
6. The Ministry has also directed that any manufactures and distillers who fail to report counterfeit products to the ACA within their knowledge will be deemed complicit in the counterfeiting of such products. The directive places a burden on manufacturers to pursue all instances of counterfeiting through a complaint to the ACA despite the existence alternative civil remedies and dispute resolution mechanisms.
7. The Ministry of Health and the Ministry of Interior shall prepare regulations to provide for special color coding of tobacco distribution vehicles and stipulate the timelines within which the vehicles may operate.
8. The directives also affect chemists and agro-veterinary traders who are required to submit their valid licenses for verification within 30 days, failure to which they will be deemed unlicensed.
9. Security teams within county governments have been directed to shut down any premises for any manufacturers, distillers, pharmacists or traders dealing in agro-veterinary  products who do not hold a valid license.

We note that although the directives are meant to prevent the proliferation of counterfeit alcoholic products and substances some of the directives  place a burden on valid licensees and risk disrupting trade of genuine products during the verification period. We also note that the Ministry had not invited stake holders for their views prior to issuing the directives. Although the Ministry has communicated that it shall invite stake holders for a consultative meeting on 12^th March 2024, some of the actions taken under the directives i.e suspension of licenses have already taken effect.

The directives are complementary to the  ACA’s mandate to enforce brand owners’ rights against counterfeit products through recordation of intellectual property rights and enforcement. Brand owners who  have already recorded their brands with the ACA have furnished the ACA with descriptions of their intellectual property rights and  a list of entities authorized to deal with their genuine products. The information furnished to the ACA during recordation enables the ACA to flag any goods in the market or at the entry points suspected of being counterfeits. Please contact us as info@cfllegal.com should you require any further information.