New smoking laws for South Africa heat up
The widely debated proposed smoking laws for South Africa are back on the Parliamentary agenda, with signs pointing to the proposals proceeding all steam ahead if they tick all the legal boxes.
Parliament’s Portfolio Committee on Health held a meeting with the Department of Health (DoH) to further discuss the Tobacco Products and Electronic Delivery Systems Control Bill.
The Bill was first introduced in the National Assembly in December 2022. It lapsed at the end of the sixth parliament, but was revived for further processing at the start of the seventh.
During the meeting, the DoH delegation, led by Deputy Minister Dr Joe Phaahla, provided a presentation on the contents of the bill.
Broadly, the proposed legislation will regulate the sale, advertising, and use of tobacco products and electronic delivery systems. However, it also introduces very specific interventions—and penalties for violating them.
The DoH said that it is not trying to ban tobacco and smoking in South Africa outright, but the new laws do have the goal of severely limiting access to these products—especially by children—dissuading the adoption of the habit, and encouraging smokers to quit.
The headline changes in the bill include:
- Regulating the burgeoning electronic nicotine and electronic non-nicotine delivery system market (ie, vapes)
- Introducing plain packaging with graphic health warnings and pictorials
- A total ban on the display of products at point of sale
- A total ban on vending machines for these products and
- Introducing 100% smoke-free areas in indoor public places and certain outdoor areas
According to the 2021 Global Adult Tobacco Survey (GATS) South Africa report, daily smokers in South Africa smoke 8.5 cigarettes a day, while the prevalence of tobacco use among adults in the country is 29.4%, which equates to 12.7 million people.
21.2% of adults in South Africa smoke tobacco daily.
Looking at the parliamentary meeting, committee chairperson Dr Sibongiseni Dhlomo argued that the bill is a necessary intervention in protecting public health, particularly the health of the youth, from the harms of tobacco and related products.
They say that this would ultimately pressure off the fiscus due to the costs of tobacco-related diseases.
Not so fast
Some members questioned why the bill does not differentiate between the levels of harm posed by different nicotine-containing products and why harm reduction approaches are not applied to tobacco in the same way as for other substances.
They highlighted the need to consider the livelihoods of the over 12 million people who continue to smoke and to provide them with access to safer alternatives.
Kurt Yeo, the Co-Founder of Vaping Saved My Life, believes 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.”
“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,” wrote Yeo in a piece for Business Day.
Committee members expressed concerns about the impact of the bill on small traders and the legal tobacco value chain – with the threat of a further explosion of illicit trade.
The South African government lost an estimated R119 billion in excise and Value-Added Tax (VAT) revenue between 2002 and 2022 as a result of the country’s sprawling illicit cigarette market.
In 2022 alone, R15 billion was lost in excise revenue and R3 billion in VAT revenue, according to a recent study by Nicole Vellios and Corné van Walbeek from the Research Unit on the Economics of Excisable Products at the University of Cape Town.
According to the study, the illicit cigarette market made up 5% of the country’s cigarette market in 2009. In 2022, it was 58%, a slight decrease from its peak of 60% in 2021.
“The reality is that these measures only push the majority into the growing and potentially more harmful illicit market. These are the unintended yet predictable consequences of irrational lawmaking, as seen during the 2020 tobacco sales ban in the heart of the Covid lockdown,” said Yeo.
Members noted that the issue of illicit trade cannot be ignored if the goal is to address the impact of smoking on the public health system.
They said that this regulation cracks the whip on the legal trade, pushing people to illegal trade which will ultimately take money away from the fiscus from lost tax revenue.
Phaahla agreed that there is a critical need of addressing illicit trade in parallel with the regulatory measures in the bill.
“If you only focus on those trading legally but ignore the illicit trade, it is completely counter-productive,” said Phaahla.
The committee said it would invite stakeholders from the law enforcement cluster to present on their plans to tackle the illicit market.
Members also stressed the importance of following due process in the consultation with stakeholders, such as the National Economic Development and Labour Council (NEDLAC), noting the need to avoid any legal challenges.
Dhlomo emphasised the importance of following due process and ensuring that the legislative process is legally sound.
“We must err on the side of consulting with the leadership of Parliament and make sure that we are within the space of a legal framework in the process going forward,” said Dhlomo.
He said that he will be meeting with the House Chairperson to seek legal advice on the matter, to ensure the public participation process is conducted properly.
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