On 28 February 2017, the Cabinet Secretary for Environment and Natural Resources (the Cabinet Secretary) issued Gazette Notice Number 2356 banning the use, manufacture and importation of all plastic bags used for commercial and household packaging (the Notice). The ban applies to carrier bags and flat bags.
The Notice will take effect on the 28 August 2017 (the Effective Date) being six (6) months from the date of the Notice.
The Notice affects all users of plastic bags, individuals, retail outlets, manufacturers and are requested to take note of these developments and put in place the necessary alternative arrangements.
The compliance and enforcement technical team of NEMA has interpreted the Notice as follows:
Category 1: Plastic carrier bags
All bags in this category are banned. For clarity these are bags commonly known as “Juala” that are used as secondary packages for items in shops, markets etc. There is NO EXEMPTION in this category.
Category 2: Flat bags
Flat bags used for carrying items outside industrial setting are banned. However, in this category EXEMPTION is extended for bags used for industrial primary packaging where the product is in direct contact with the plastic and is done at the source.
Category 3: Flat bags used as Garbage and hazardous (e.g. medical waste, chemicals etc.) waste liners.
i) Hazardous waste liners are exempted so long as they are legibly and permanently labeled and color-coded and are incinerated together with the waste.
ii) Garbage liners are also exempted on condition that they are clearly labelled and have demonstrated effective and efficient Extended Producer/User Responsibility and/or effective Take Back Schemes.
Category 4: Duty Free shop bags
Since duty free shops at airports are considered to be outside the Kenyan territory, bags used at this point are not affected by the ban. However, any traveller coming into Kenya with duty free bags shall be required to leave the bags at the entry points.
The potential alternatives are:
a) All bags made from non-plastic materials e.g. jute/sisal, paper, cloth, papyrus;
b) Woven polypropylene plastic bags (gunny bags);
c) Non-woven polypropylene plastic bags (cloth-like bags);
d) Laminated polypropylene bags;
e) Polyolefin fibre bags; and
f) 100% biodegradable bags (starch and cassava bags).
CONSEQUENCES FOR NON-COMPLIANCE
Any person who contravenes the Notice shall be liable to:
i) a fine of not less than Kenya Shillings two million (KES 2,000,000) and not more than Kenya Shillings four million (KES 4,000,000); or
ii) to both fine and imprisonment. It is however unclear whether this penalty is applicable to both individual users and manufacturers.
There are no guidelines in place for the enforcement of the Notice. However, we are aware that NEMA is in the process of creating general enforcement guidelines of the Notice.
The content of this alert is intended to be of general use only and should not be relied upon without seeking specific legal advice on any matter.