Breast Milk Substitutes (Regulation and Control) Act

Section 1. Short title Section This Act may be cited as the Breast Milk Substitute (Regulation and Control) Act.

Section 2. Interpretation Section 2(1)(a) written publication, a television or radio broadcast, film or electronic transmission, including the internet video or telephone; Section 2(1)(b) displays, signs, symbols, colours, billboards or notices; or Section 2(1)(c) exhibition of pictures or models; Section 2(1)(a) any food or drink designed for infants marketed or otherwise represented to be a partial or total replacement of breast milk, whether or not it is suitable for that purpose; Section 2(1)(b) feeding bottles; Section 2(1)(c) teats; Section 2(1)(d) infant formula; Section 2(1)(e) follow-up formula for infants or children between the age of six months to twenty-four months; Section 2(1)(f) products marketed or otherwise represented as being suitable for feeding infants of up to the age of six months; Section 2(1)(g) breast milk fortifiers; Section 2(1)(h) pacifiers; Section 2(1)(i) cups with spout; or Section 2(1)(j) any other product the Cabinet Secretary may, by a notice in the Gazette , declare to be a designated product; Section 2(2) Spent.

Section 3. Act to bind the Government Section This Act shall be binding to the Government.

Section 4. Establishment of Committee Section 4(1) The Cabinet Secretary shall establish a committee to be known as the National Committee on Infant and Young Child Feeding. Section 4(2)(a) the Director of Public Health, who shall be the Chairperson; Section 4(2)(b) the Director of Nutrition and Dietetic Services; Section 4(2)(c) the Director of the Kenya Bureau of Standards or his representative; Section 4(2)(d) the Director of the Kenya Medical Research Institute or his representative; Section 4(2)(e) the Director of a national hospital or his representative; Section 4(2)(f) the Registrar of the Nursing Council of Kenya or his representative; Section 4(2)(g) the Chairperson of the Kenya Paediatric Association or his representative; Section 4(2)(h) the Chairperson of an institution representing nutritionists or his representative; Section 4(2)(i) private health institutions; Section 4(2)(i)(i) private health institutions; Section 4(2)(i)(ii) non-governmental organizations with national mandate on infant and young child feeding; Section 4(2)(j) a representative of the Principal Secretary in the Ministry for the time being responsible for matters relating to trade; and Section 4(2)(...

Section 5. Functions of the Committee Section 5(1)(a) advise the Cabinet Secretary on the policy to be adopted in relation to infant and young child nutrition; Section 5(1)(b) participate in the formulation of, and recommend the regulations to be made under this Act; and Section 5(1)(c) perform any other functions as may, from time to time, be assigned by the Cabinet Secretary. Section 5(2) The Committee may, by resolution either generally or in any particular case, delegate to any of the sub-committees established under section 4 (8), the exercise of any of its powers or the performance of any of its functions or duties under this Act.

Section 6. Prohibition on advertisement and promotion Section 6(1) A person shall not advertise or promote to the general public or cause to be advertised or promoted a designated or complementary food product. Section 6(2)(a) a directly or indirectly introduces a designated or complementary food product or encourages the buying or use of the product; Section 6(2)(b) uses sale devices such as special discounts, special displays to promote sales, competitions with prizes, tie-in sales, provision of premiums and rebates, discount coupons, loss leaders, giving of gifts and free samples of a designated or complementary food product to mothers; Section 6(2)(c) as a marketer, makes a direct or indirect contact with members of the public in furtherance of, or for the purpose of promoting business of a designated or complementary food product; Section 6(2)(d) makes electronic communications of a designated or complementary food product including internet, website and electronic mail; Section 6(2)(e) distributes promotional items including clothing, stationery, household utensils or items that refer to a designated or complementary food product or the brand name of the product; Section 6(2)...

Section 7. Power of the Cabinet Secretary to permit donations Section 7(1) Donations or distributions of breast milk substitutes or complementary food products to charitable children institutions shall be in such manner as may be prescribed by the Cabinet Secretary. Section 7(2)(a) the label on the package carrying a designated or complementary food product shall be in accordance with the provisions of the Standards Act (Cap. 496); and Section 7(2)(b) the infant care providers have or shall receive appropriate training to prevent any health hazards occurring from improper use.

Section 8. Health worker or proprietor not to accept gifts Section a gift;

Section 9. Labelling of packages Section The package of a designated or complementary food product shall contain notices, warnings and necessary information with respect to promotion of breastfeeding and proper use of breast milk substitutes in the wording, size and manner prescribed by the Cabinet Secretary.

Section 10. Educational and informational materials to be approved by Cabinet Secretary Section 10(1) Subject to subsection (2), a person shall not publish or cause or permit to be published any informational or educational material on infant and young child feeding unless the material has been prescribed by the Cabinet Secretary. Section 10(2) Subsection (1) shall not apply to research articles and public presentations which disclose the financier, sponsor or facilitator thereof and which do not contain any advertisement or promotion of a designated or complementary food product in any manner. Section 10(3) The Cabinet Secretary shall make Regulations prescribing the procedures and requirements for the approval of informational and educational material under subsection (1).

Section 11. Appointment of authorised persons Section 11(1) The Cabinet Secretary may, from time to time, by notice in the Gazette , appoint any person or a class of persons to be authorized officers for the purposes of this Act. Section 11(2) The Cabinet Secretary shall issue a certificate of appointment to every person appointed as an authorised officer under this section. Section 11(3)(a) public health officers appointed under the Public Health Act ( Cap. 242 ); and Section 11(3)(b) any other person upon whom written law vests functions of maintenance of law and order,

Section 12. Places authorised officers may enter Section 12(1)(a) a designated or complementary food product is or has been produced, manufactured, stored, packaged, sold or used; Section 12(1)(b) there is anything used in the production, manufacture, testing, packaging, promotion or sale of a designated or complementary food product in the place; Section 12(1)(c) there is information relating to the production, manufacture, testing, packaging, promotion or sale of a designated or complementary food product; Section 12(1)(d) any person is in any way contravening the provisions of this Act. Section 12(2) An authorised officer who wishes to enter any premises under this section shall, if required, produce for inspection, by the person who is or appears to be in charge of the premises, the certificate issued under section 11 (2).

Section 13. Powers of authorised officers Section examine a designated or complementary food product or anything referred to in section 12 ;

Section 14. Entry of dwelling place Section An authorised officer shall not enter a dwelling place except with the consent of the occupant or under authority of a warrant issued under section 15 .

Section 15. Authority to issue warrant Section 15(1)(a) the dwelling place is a place referred to in section 14 ; Section 15(1)(b) entry into the dwelling place is necessary for the administration or enforcement of this Act; Section 15(1)(c) the occupant does not consent to the entry or that the entry has been refused or there are reasonable grounds for believing that it will be refused. Section 15(2) An authorised officer named in the warrant issued under subsection (1) shall enter a dwelling place between six o’clock in the forenoon and six o’clock in the afternoon of any day of the week.

Section 16. Use of force Section An authorised officer executing a warrant issued under section 15 shall not use force unless such officer is accompanied by a police officer and the use of reasonable force is specifically authorised in the warrant.

Section 17. Certificate of analysis Section An authorised officer shall, after analysing or examining a designated or complementary food product, prepare a certificate or report setting out the results of analysis or examination.

Section 18. Assistance of authorised officers Section provide all reasonable assistance to enable the authorised officer to carry out his duties under this Act;

Section 19. Obstruction of authorised officer Section A person shall not obstruct or hinder, or knowingly make a false or misleading statement to an authorised officer who is carrying out duties under this Act.

Section 20. Seizure of product, etc. Section During an inspection under this Act, an authorised officer may seize any designated or complementary food product or thing by means of which or in relation to which the officer believes, on reasonable grounds, that this Act has been contravened and take full inventory of all the items seized.

Section 21. Storage and removal of seized product Section An authorised officer may direct that any designated or complementary food product or thing seized be kept or stored in the place where it was seized or that it be removed to another place.

Section 22. Interference with seized product or thing Section Unless authorised by an authorised officer, a person shall not remove, alter or interfere in any manner with any designated or complementary food product or other thing seized.

Section 23. Restoration of seized product or thing Section Any person from whom a designated or complementary food product or a thing has been seized may, within sixty days after the date of seizure, apply to the High Court for an order of restoration.

Section 24. Order for restoration Section the applicant is entitled to possession of the designated or complementary food product or the thing seized; and

Section 25. Order of later restoration Section 25(1)(a) expiration of one hundred and eighty days from the date of seizure if no proceedings in respect of an offence under this Act have been commenced before that time; or Section 25(1)(b) final conclusion of any such proceedings under this Act. Section 25(2) An order for restoration shall not be made under this section where a designated or complementary food product or a thing has been forfeited by consent under section 26 .

Section 26. Forfeiture of product Section no application has been made under section 23 , or an application has been made but on the hearing of such application no order for restoration is made;

Section 27. Offences and penalties Section 27(1) A person who commits an offence for which no penalty has been specifically provided for, shall on conviction be liable to a fine not exceeding one million shillings or a term of imprisonment not exceeding three years, or to both. Section 27(2)(a) the act or omission constituting the offence took place without his knowledge; or Section 27(2)(b) he took reasonable steps to prevent the commission of the offence.

Section 28. Regulations and Orders Section 28(1)(a) the wording, size and manner of notices, warnings and information required under section 9 ; and Section 28(1)(b) the procedures and requirements under which informational or educational material may be approved under section 10 (3); and Section 28(1)(c) any other thing that is required by this Act to be prescribed. Section 28(2) The Cabinet Secretary may, by order, permit a person or class of persons to use specified signs, symbols, colours, billboards or notices associated with a designated or complementary food product in the promotion or advertisement of other goods not connected with a designated or complementary food product but health care facilities or health workers shall not be used in the promotion. Section 28(3) In making regulations under subsection (1), the Cabinet Secretary shall make reference to the International Code of Breastmilk Substitutes, 1981 and subsequent World Health Assembly resolutions or any other stated public policy. Section 28(4) Regulations made under this section shall not come into operation upon publication but shall be laid before the National Assembly and the provisions of subsections (5) and...