South Africa divided over new smoking laws

The reintroduction of the Tobacco Products and Electronic Delivery Systems Bill in hopes of getting the proposed smoking laws passed once again has left many South Africans divided.

Recently, the Department of Health (DoH) re-presented the Bill to the portfolio committee on health, kickstarting the process of getting the laws passed once again after it lapsed at the end of the previous administration.

Broadly, legislation is proposed that will regulate the sale, advertising, and use of tobacco products and electronic delivery systems. 

Among other things, it seeks to:

• Impose stricter product processing, manufacturing and import standards;
• Regulate tobacco product and electronic delivery system advertising;
• Standardise the ‘packaging and appearance’ of tobacco and electronic delivery system products;
• Prohibit smoking in all indoor public places as well as ‘certain outdoor areas’;
• Ban cigarette vending machines;
• Make ‘plain packaging with graphic health warnings and pictorials’ mandatory; and
• Ban the display of tobacco products and electronic delivery systems at points of sale.

A more in-depth explanation of the proposed interventions can be found below:

The DoH has been quick to say that it is not trying to outright ban tobacco and smoking in South Africa, but the new laws do have the goal of significantly limiting access to these products—especially by children—thereby dissuading the adoption of the habit and encouraging those who smoke to quit.

Notably, the DoH said that the new laws want to curb exposing children and non-smokers to those who persist in the habit and are seeking to impose penalties on those who do expose them.

Presenting the re-introduction of the Bill to Parliament in September 2024, Deputy Minister of Health Dr Joe Phaahla said that the legislation is important in addressing the severe health risks associated with tobacco use, which leads to millions of deaths globally each year.

Looking at some of the proponents, the lead investigator of the Global Adult Tobacco Survey-South Africa (GATS-SA), Dr Catherine Egbe of the South African Medical Research Council, said that the research findings “highlight the urgent need to pass the Bill as soon as possible.”

“GATS-SA indicates that 29.4% of those aged 15 years and up—equating to 12.7 million people—use tobacco, exposing themselves to severe health risks such as cancer, cardiovascular diseases, and respiratory disorders.”

“E-cigarette use among youth is also on the rise, raising concerns about nicotine addiction and long-term health implications, especially for young people whose brains can be impacted by nicotine,” added Egbe.

Dr Sharon Nyatsanza of the National Council Against Smoking (NCAS) said that a “strong tobacco control policy is central to reducing South Africa’s heavy burden of non-communicable diseases and will support sustainable implementation of [the] National Health Insurance” by bringing domestic legislation closer to global standards.”

Speaking about the rise of e-cigarette usage among the youth, a youth advocate from the South African Tobacco-Free Youth Forum, Lesego Mateme, said, “It is clear that the youth are the targets of the aggressive marketing tactics of the tobacco and e-cigarette industries.”

“Tobacco and emerging tobacco products should be viewed as threats to our generation,” said Mateme.

Not the right move…

While these abovementioned arguments have helped propel the Bill to its current state, critics have warned of several consequences of the proposed legislation.

Kurt Yeo, the Co-Founder of Vaping Saved My Life, wrote in a piece for Business Day that the Bill “will prohibit, restrict, ostracise and entrench further stigma on smokers and those who have chosen a safer alternative.”

“It does not provide solutions, and if passed in its present format, will severely affect lives.

There are millions of frequent smokers in the country, thus “it’s unrealistic to think they will all quit overnight [but] perhaps that’s what government policymakers believe when they formulate draconian anti-tobacco laws and increase excise duties,” added Yeo.

He argued that a prohibitionist approach fails to account for the fact that in any human population, there will be significant numbers of people who either refuse to or cannot comply with the dictates of government.

“The reality is that these measures only push the majority into the growing and potentially more harmful illicit market… the unintended yet predictable consequences of irrational lawmaking, as seen during the 2020 tobacco sales ban in the heart of the Covid lockdown,” he added.

In response to Covid-19, the South African government banned the sale of tobacco products for 20 weeks, which exacerbated an already well-entrenched illicit cigarette market in the country.

Despite the South African cigarette market being worth around R268 billion in 2024, its illicit trade has surged, raising concerns that new legislation could exacerbate the issue.

The illicit market, which constituted 5% of total cigarette sales in 2009, grew to 58% by 2022, down from a peak of 60% in 2021.

Between 2002 and 2022, the government lost an estimated R119 billion in excise and VAT revenue due to this booming black market. In 2022 alone, losses totalled R15 billion in excise and R3 billion in VAT.

According to a research paper by Corné van Walbeek, Robert Hill and Samantha Filby, “the sales ban did not have the intended objective of encouraging large-scale smoking cessation.” 

“This reflects policy failures to provide smokers with appropriate cessation support and to effectively control the illicit market both prior to and during the sales ban,” they added.

Yeo echoed this, saying that “to motivate people to stop smoking, we need people-centric cessation strategies and tobacco harm reduction — policies, programmes and practices that minimise the negative effects of risky behaviours.”

On top of these concerns raised, the National Informal Traders Alliance of South Africa (Nitasa) have warned of a potentially detrimental impact it could have on informal traders.

Nitasa argues that the Bill’s adoption in its current form could severely impact around 2.2 million informal traders in South Africa, including hawkers and spaza shop owners, who heavily rely on (legal) cigarette sales.

President of Nitasa, Rosheda Muller, believes that these raised concerns have, however, been like water off a camel’s back to lawmakers.

Muller said that “the Bill wasn’t wrapped up before the last Parliament ended, and now it’s being pushed through the Portfolio Committee on Health again.”

Other concerns about the Bill raised during the public participation process include potential job losses, reduced tax revenue from legal tobacco sales, insufficient consideration for small and emerging tobacco farmers, and inadequate monitoring and enforcement capacity.

During several public hearings, the SA Legal Academy said calls were made for the Bill to be sent to the National Economic Development and Labour Council for more robust consultation.

“In addition, it appears that no socio-economic impact assessment was ever conducted.”

“With those issues in mind, it remains to be seen how the new National Assembly Health Committee proceeds,” said the SA Legal Academy.

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