The proposed Control of Tobacco Products and Electronic Delivery Systems Bill, 2018, currently under consideration by the National Assembly, includes some radical changes to the law in its current form.

The measures would restrict smoking inside homes, establish 100% smoke-free areas in all indoor public places and designated outdoor areas, ban the display of all tobacco products (and related products such as vaping devices) at points of sale and prohibit their sale through vending machines.

The proposal is linked to the Sectional Titles Act 95 of 1986, regarding the prohibition of smoking inside the home.

The SAPS raised a concern during the bill’s inter-departmental consultation process that it would be difficult to enforce the law in individual homes, noting that a warrant would be required to prove the offence in court. However, the relevant clause was kept in the bill ‘mainly because it protects the constitutional rights of workers’.

The National Prosecuting Authority (NPA) also commented on clause two, arguing that an individual cannot be punished for not displaying signs in the car or home, indicating that the legislative scope includes these private areas.

Smoking in your car

Direct confirmation of a definitive ban on smoking in private cars is not explicitly stated as one of the bill’s main aims. However, the regulation of smoking in vehicles was mentioned during departmental consultations.

The NPA raised a concern that an individual cannot be punished for not displaying signs in the car or at home. This suggests that the scope of the proposed laws covers cars.

Plain packaging with only the name on

One of the key areas the bill aims to address is the introduction of plain packaging of tobacco products, which includes the introduction of ‘plain packaging with graphic health warnings/pictorials’.

The current legislation allows for brand logos and colours to be used as part of the packaging, but the new bill seeks to replace this by requiring standardised packaging intended to reduce the appeal of tobacco products, increase the noticeability and effectiveness of health warnings and ultimately influence smoker attitudes and behaviours.

Contrary what is being circulated online, it does not explicitly state that the packaging must be brown or that only the name can appear.

E-cigarettes and vapes

Electronic Nicotine Delivery Systems (ENDS) and Electronic Non-Nicotine Delivery Systems (ENNDS), commonly referred to as e-cigarettes and vapes, will be brought under the same stringent regulations as traditional tobacco products if the bill is passed.

Currently, these new generation products, which are harmful to health, remain unregulated in South Africa. The decision to regulate them is based on the findings in the World Health Organisation report on the Global Tobacco Epidemic 2021: Addressing New and Emerging Products that e-cigarettes are ‘undoubtedly harmful’. They contain toxic substances, including nicotine, that are highly addictive and linked to health issues like heart disease and strokes. Even ENNDS, which are non-nicotine products, contain artificial flavourings that have been shown to cause serious lung disease when inhaled.

The bill addresses the risk that children and adolescents who start using e-cigarettes double their risk of later smoking tobacco cigarettes. A South African study found a high incidence of ‘dual use’, where most current e-cigarette users were also regularly smoking conventional cigarettes.

The tobacco and vaping industries strongly oppose the move to regulate ENDS similarly to combustible cigarettes. They argue this regulatory parity will:

• Prevent smokers from switching to what they consider to be ‘alternative, less harmful products’.
• Confuse consumers into assuming that ENDS are as dangerous as traditional cigarettes, especially when forced into plain packaging.

In addition, they requested specific exclusions for smoke-free products from the point-of-sale display ban, plain packaging and the 100% smoke-free area ban. These requests were not accepted by the Department of Health because the products are considered harmful and addictive, and the bill’s objective is to protect public health

Other significant proposals

Beyond the regulation of private homes and plain packaging, other significant proposals in the bill include:

100% Smoke-free areas: The bill aims to introduce 100% smoke-free areas in all indoor public places and specified outdoor areas. The tourism and hospitality industries strongly oppose this measure, claiming it will lead to the loss of revenue, reduced tourism activities and potentially the loss of jobs.

Ban on display at points of sale: The proposal includes a ban on the display of all tobacco products (and related products, including ENDS/ENNDS) at points of sale. Retailers and the industry oppose this, arguing it will lead to customer delays as they cannot easily identify their choice of brand, resulting in sales loss and impacting profit targets, while the government views this ban as essential to reducing youth susceptibility to smoking initiation or experimentation.

Ban on vending machines: The bill explicitly bans the sale of cigarettes (and related products) through vending machines. The Vending Association opposes the ban, anticipating a significant loss of income (estimated at R90m per annum) and the rendering of approximately 1 400 machines useless. The ban was accepted because vending machines are considered a point of advertising and provide easy access to tobacco products for children.

Ban on single stick sales: While not explicitly banned in the bill itself, the Small Business Development Department noted concerns about the proposed limits placed on selling single stick cigarettes. This ban is expected to negatively impact spaza/tuck shop owners and hawkers who primarily sell loose cigarettes. The Department of Health noted that these concerns will be addressed when the necessary regulations are developed.

Latest

The Parliamentary Monitoring Group (PMG) confirmed to Caxton Network News that the portfolio committee on health held extensive public hearings on the bill in June, July and August. According to the information service, the next convention in the process is for the Department of Health to present its responses to these public comments.

This was supposed to happen on November 11, in a meeting closed to the public, but the committee was not pleased with the document the department intended to present and this meeting will take place early next year. The bill is still under processing before the portfolio committee.

“There were serious concerns that the department actually intended to introduce a new version of the bill,” PMG said.

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