Submission on Wednesday 8 August 2018 to the National Parliament of the Republic of South Africa regarding the Control of Tobacco Products and Electronic Delivery Systems Bill.
This Submission criticises the proposed introduction of mandatory standardised packaging and labelling of tobacco products. Academic literature suggests that plain packaging “does not change smoking behaviour, at least in the short term.” There is also a lack of behavioural evidence that “shock messaging” has the desired effect of reducing the incidence of smoking.
In addition, plain packaging requirements infringe on South Africa’s intellectual property framework and possibly international trade obligations.
This Submission also notes that the penalties for failing to comply with the plain packaging requirements are disproportionately high (a fine or imprisonment for a period not exceeding five years, or both).
Retail display ban
This Submission opposes the draft Bill’s display ban in retail outlets. Coupled with plain packaging, this will hinder kiosk staff’s ability to deliver quick, accurate service to customers and result in long queues and other impracticalities.
This Submission further notes that the retail display ban will create barriers to competition for industry and an inability for tobacco manufacturers to launch new products.
Read more: Compliance and Ease of Doing Business
Allegations about “widespread” addiction
This Submission contests the allegation in the Bill’s Preamble that tobacco use has caused “widespread” addiction. Tobacco use has been declining. It is therefore unnecessary to adopt an extreme measure such as this Bill.
Bill’s harsh measures against “electronic delivery systems”
This Submission takes issue with the proposed Bill’s harsh measures against “electronic delivery systems”, despite the Bill’s acknowledgement that the long term harmful effects of using them “remains unknown”.
We dispute the constitutionality of the Bill’s oppressive approach to these devices in the absence of any evidence of harm and point out that the Bill treats even “non-nicotine” devices in this way.
Read more: Consumer Choice Principle
Bill’s reliance on Constitution
This Submission criticises the Bill’s purported reliance on the “democratic values” of the Constitution, the “fundamental rights” of society, and “Chapter 2 of the Constitution” (i.e., the Bill of Rights).
We point out the Bill’s clauses which violate the fundamental rights to Freedom of the Person, to Human Dignity, and to Privacy; and which place limitations on Freedom of Expression and Trade.
Bill’s provisions prohibiting smoking in public places
This Submission points out that the Bill’s clauses prohibiting smoking in “enclosed” public places are unduly oppressive, in that they would prohibit smoking in any place that has a roof, even if it merely has a cover functioning temporarily as a roof.
The Bill would also deem a public place to be “enclosed” if it has a curved wall, or only two walls, and even if roofless. This is unreasonable and probably unconstitutional.
Bill’s provisions prohibiting smoking in workplaces
This Submission queries the Bill’s unduly oppressive clause which prohibits smoking in a “workplace”, which is defined as including any place where only one employee works.
This is wide enough to include a person working alone from home.
Bill’s drafting shortcomings
This Submission takes issue with drafting shortcomings in the Bill.
There are a number of drafting shortcomings. To take two examples:
The Bill states that no person may smoke in any motor vehicle when a child under the age of 18 is present and “there is more than one person present in the vehicle”. That phrase is redundant, because a provision that no person may smoke in a vehicle when a child under 18 is present implies that more than one person is present.
The Bill prohibits smoking in a private dwelling used for “domestic employment”. This is wide enough to include a person working alone, online say, from his or her home. Presumably something else was intended, probably the prohibition of smoking in homes where a domestic worker is employed. Is government seriously proposing to force home owners who smoke to choose between their cigarettes and their domestic? Isn’t unemployment already high enough?
Clause authorising Minister to prohibit smoking in any outdoor place
This Submission takes issue with the Bill’s clause which authorises the Minister to prohibit smoking in any outdoor public place where smoking “may” pose a “fire or other hazard”, in that this strays outside the scope of the Minister’s responsibility for health.
The clause authorises the Minister to prohibit smoking in “such other place where the Minister considers it appropriate to reduce smoking” in order to reduce or prevent the public’s exposure to smoking. Issue is taken with that.
Issue is also taken with the extraordinary powers the Bill will grant the Minister, not just regarding smoking in public places but also in terms of future health regulations.
Clause that owners of public places may prohibit smoking outdoors
The Bill states that the owner or person in control of a public place may designate any outdoor space as an area where smoking is prohibited.
It would enable each municipality to ban smoking on all pedestrian sidewalks, parks and other open-air public places throughout the municipality.
This is unduly draconian. The country is divided “wall to wall” into municipalities. Issue is taken with this clause.
Clause that shop assistants under 18 can’t handle tobacco products
The clause is challenged as it obliges the person in control of any business to ensure that no employee under the age of 18 handles any tobacco product or electronic delivery system on the business premises.
This is grossly unreasonable to small grocery stores, corner cafés, tearooms and the like, that often employ students after school hours or other youngsters as part-time shop assistants.
Clause imposing criminal liability on owners of premises
The Bill stipulates that the owner or person in control of a place where smoking is prohibited “must ensure that” no person smokes in that place and must display the prescribed signs and “make the prescribed public announcements” to inform anyone entering or on the premises that smoking is prohibited.
The Bill states that a person who contravenes or fails to comply with these provisions is guilty of an offence, and is liable to a fine, or imprisonment for up to a year, or both.
These provisions unduly penalise owners of premises where smoking is prohibited who fail to “ensure that” no person smokes there.
Read more: Property Rights
Powers of entry into premises
The Bill would make applicable the provisions of the National Heath Act which authorise a health officer or inspector with a search warrant to enter any premises, including a private dwelling, to require the occupant or any person present to make any object available, to inspect it, and to seize it.
The Bill will also make the National Heath Act’s provisions applicable which authorise a health officer or inspector to exercise these powers without a warrant.
These powers are unduly draconian in a smoking law.
The Bill would also authorise the Director General of Health to authorise any “person or class of persons” to enforce the provisions of the Bill, presumably including its powers of entry. This gives an unduly wide discretion to the D-G to appoint anyone at all to search premises and seize goods.
This provision is a violation of the Rule of Law.
Illicit tobacco consumption
This Submission argues that the Bill may lead to the unintended consequence of an increase in illicit tobacco consumption. This will result in a negative economic impact on the country in terms of lost revenue for the fiscus. A rise in illicit tobacco consumption will also have negative consequences for the retail sector, from agricultural producers to consumer facing establishments. This will result in job losses throughout the value chain.
This Submission argues that cheap and easily available illicit tobacco may result in an uptake of smoking amongst the youth, thus undermining the government’s public health objectives.
Clause prohibiting corporate social investment
This Submission highlights that the Bill’s general prohibition of “financial or other support, whether or not in exchange for publicity” by tobacco manufacturers to any welfare organisations or corporate social responsibility activities will impact negatively on these companies’ existing corporate social investment (CSI) programmes.
To this end, this Submission notes that there are a number of non-government organisations (NGOs) that rely on corporate donations from the tobacco industry. These NGOs provide an essential public service primarily to the poor and the indigent and will be forced to discontinue these socially beneficial activities due to a lack of financial support from the tobacco industry as a consequence of the restrictions of the Bill.
This Submission further notes that the prohibition of financial support would leave tobacco companies with no way of “giving back” to vulnerable communities and would also undermine these companies’ compliance with existing BBBEE regulations.
Socio-Economic Impact assessment
The Impact Assessment is unduly tilted in favour of the draft Bill.
This Submission points out that the Assessment shows bias and is not a genuine assessment of the socio-economic impact of the proposed Bill.
The Cabinet in February 2007 decided on the need for a consistent assessment of the socio-economic impact of legislation and regulations. The approval followed a study commissioned by the Presidency and the National Treasury in response to concerns about the failure in some cases to understand the full costs of legislation and especially the impact on the economy.
Read more: Economic Freedom
The Bill is bad for consumers, bad for small business, bad for the economy and bad for democracy – it should be scrapped.
To improve the economy and unleash economic freedom and prosperity for all, the role of the entrepreneur is key. To liberate this talent, Ineng’s Entrepreneurs in Public Policy series has extensive recommendations for government here.
Above: An Entrepreneurs in Public Policy workshop in Khayelitsha addresses asset ownership and property rights in marginalised communities.