Big change coming for smoking in South Africa
New smoking laws being processed by parliament could force tobacco brands to use standardised packaging.
However, legal experts have highlighted how the move could exacerbate South Africa’s problems with illicit trade, while law enforcement and SARS have warned that it could complicate their jobs.
South Africa’s lawmakers are currently processing the Control of Tobacco Products and Electronic Delivery Systems Bill, with the latest round of public consultations concluding at the end of 2025.
Broadly, the bill aims to clamp down on tobacco use and regulate grey areas, such as electronic delivery systems (vapes), in South Africa through various measures.
Some measures have been welcomed by stakeholders, but many have been rejected or criticised for going too far.
Measures like banning smoking in all indoor public spaces, in certain outdoor areas, and sales to minors have been more acceptable, while the banning of advertising, promotion and the like have not gone over well.
The proposal to force tobacco companies to sell products in plain packaging has also been a controversial one.
Of particular significance is that during the consultation process, the South African Police Service and SARS made presentations on the broader economic and enforcement implications of the move.
SARS raised concerns about plain packaging and the unintended consequences it could have on illicit trade.
If all packaging is the same, then the illicit market—which makes up as much as 75% of the entire industry—could find it far easier to operate.
To avoid this, SARS has suggested that the health imperative could be served by requiring large, visible health warnings on packaging.
This would meet the health goals while still allowing for easier identification of legally regulated products.
While it has been posited that the illicit trade falls beyond the scope of plain packaging legislation, the issue has at least been flagged by parliament as something to consider.
Plain packaging raises legal questions
According to legal firm Adams & Adams, the push for plain packaging also raises legal questions.
The firm noted that there has been a strong global push towards regulating tobacco and tobacco products with the aim of reducing tobacco consumption.
Governments have tried a wide array of interventions to accomplish this, including standardised packaging, flavour bans, restrictions on retail displays, nicotine limits, environmental regulations and traceability systems to combat illicit trade.
“These initiatives are designed to curb the tobacco industry’s ability to market products through visual cues or sensory appeal, particularly those that attract young people and first-time smokers,” the firm said.
Looking at plain packaging specifically, however, this measure is not as widely adopted, but is gaining traction.
According to the Canadian Cancer Society (CCS), as of February 2024, 42 countries and territories had implemented measures moving towards plain packaging.
Australia adopted plain packaging in 2012, and since then, nations such as France and the United Kingdom have followed suit.
As of now, 25 countries and territories have implemented plain packaging regulations, a significant increase from just 9 in 2018 and 21 in 2021.
Three territories import from countries that have adopted such legislation, effectively making it 28 countries.
At least 14 more countries, including South Africa, Mexico, Malaysia, Colombia, and Russia, are now formally considering similar legislation, signalling that the trend is likely to continue.
“The goal is to eliminate packaging as a marketing tool, enhance the visibility of health warnings, and reduce the likelihood of misleading consumers about the risks of tobacco use,” the firm noted.
However, following the introduction of plain packaging in Australia and the UK, litigation ensued over whether the plain packaging regulations were constitutional.
This was because the legislation arguably results in a deprivation of intellectual property rights that vest various branding elements, such as logos.
“In 2012, Australia’s High Court upheld the country’s plain packaging laws, with the Court of Appeal of England and Wales following suit in 2015,” the firm noted.
In 2020, a challenge was brought before the World Trade Organisation, an international organisation responsible for, among other things, recognising and protecting intellectual property rights.
The complaint targeted Australia’s plain packaging legislation. The WTO Appellate Body upheld the High Court’s ruling.
This was in recognising that plain packaging legislation fulfils a legitimate governmental objective and that Australia’s plain packaging legislation makes a meaningful contribution toward achieving that objective.
“In this debate so far, the public health concerns and reduction of risk incentives have outweighed the rights of brand owners,” Adams & Adams said.
South Africa is a unique case
Adams & Adams noted that plain packaging legislation has been enforced in certain jurisdictions for over ten years, resulting in an ever-growing body of evidence that supports the efficacy of these measures in reducing tobacco consumption across all age groups.
“Depending on which side of the fence one sits, that evidence demonstrates either a reduction in consumption, particularly among children, or an increase in consumption and illicit trade,” it said.
However, the firm noted that South Africa may be uniquely positioned in the debate, having had a crash course on the growth of the illicit tobacco trade following the ban on tobacco sales during the early months of the Covid-19 pandemic.
According to British American Tobacco (BAT), the 2020 sales ban on tobacco during the Covid-19 pandemic and lockdown was a “critical breaking point” that handed South Africa’s tobacco market to criminals.
Its data showed that about R14 billion in total excise was collected from local manufacturers in 2019, before the ban. This dropped to R9 billion in 2021 after the ban.
At the same time, approximately 1.6 billion additional cigarettes were smoked in the country, pointing to a surge in illicit trade.
Given that reality, BAT stated that the new laws proposed in the tobacco bill make little sense—mainly because the criminal-controlled market will likely ignore them, while legitimate players will suffer.
Considering SARS’ and the SAPS’ views on enforcement, as well as the difficulties that plain packaging could introduce, the measure may simply give criminal enterprises even more room to thrive.
“This space is clearly dynamic and important, considering the health risks posed by tobacco consumption,” Adams & Adams said.
“In countries like South Africa, with a burgeoning illicit trade, it will be interesting to see how these competing, and not insignificant interests, play out against one another.”
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