New smoking laws for South Africa get blowback

As Parliament proceeds full steam ahead with the legislative process of new smoking and vaping laws, various business, labour and social stakeholders have expressed frustration with what they label a lack of consultation with the National Economic Development and Labour Council (Nedlac).

Recently, the Portfolio Committee on Health resolved to proceed with processing the Tobacco Products and Electronic Delivery Systems Control Bill.

The bill “seeks to strengthen public health protection measures, align South African tobacco control law with the World Health Organisation Framework Convention, and repeal the Tobacco Control Act.”

Broadly, it aims to reduce tobacco use in South Africa, where 29.4% of adults smoke, by regulating the sale, advertising, and use of tobacco products and electronic delivery systems like vapes, in attempts to safeguard public health and alleviate pressure on the healthcare system.

Key changes include further regulating the tobacco and vape market, introducing plain packaging with graphic health warnings, banning product displays at point of sale and vending machines, and enforcing 100% smoke-free zones in public indoor and certain outdoor areas – with repercussions for those who violate the laws.

Introduced in the previous administration, MPs did not finish their work on the bill before parliament rose ahead of the May general election; however, the legislation was revived and is marching full steam ahead to becoming law by finishing public consultations.

Support for and arguments against the clauses in the bill have been widely publicised, but a notable point of contention currently is the consultation (or lack thereof) with Nedlac.

Nedlac is a consensus-seeking organisation composed of representatives from business, government, and labor, guided by the Nedlac Act.

They, along with other stakeholders like Cosatu, have warned that a lack of consultation would expose the government to legal challenges if the bill is passed.

Nedlac previously called on Parliament to halt its processes this year to allow it to go through the bill clause-by-clause, and ensure proper engagement from both business and labour groups.

However, the Department of Health, rebuffed this and said it had engaged with Nedlac in 2021 and 2022 before the bill was tabled. 

Concerns that Nedlac was not properly consulted prompted the committee to seek guidance from Parliament’s Legal Services. 

Nedlac’s executive director, Lisa Seftel told News24 that “the Nedlac social partners are very disturbed that the bill will proceed without sufficient consultation as per the Nedlac protocol on bills which have socioeconomic implications.”

Seftel, however, said the council would not launch a legal challenge over the lack of consultation. 

“Nedlac is a facilitating body. We have written to the relevant government structures on behalf of social partners,” she said.

Nedlac’s business convener, Kaizer Moyane, recently said that “the parliamentary process should be halted [as] to run the process without the views of the social partners would be robbing parliament of the richness of their [expertise].”

“The importance of Nedlac’s involvement in the bill cannot be overstated. The bill, if passed in its current form, will have significant socioeconomic effects on South Africa.

“It will transform the law on tobacco products and introduce new legislation on electronic delivery systems. Such far-reaching changes fall squarely within Nedlac’s mandate,” he said.

This worry of a lack of consultation was echoed by the National Informal Traders Alliance of South Africa
(Nitasa), representing over 2.2 million hawkers, spaza shops, and kiosks nationwide,

They said that cigarettes, particularly single sticks, are a crucial product for these traders, often boosting sales of other items.

Rosheda Muller, President of Nitasa, said that “active participation in the legislative process is vital because it ensures that the voices of those directly affected are heard before decisions are made, not after.”

“Waiting until after the fact to be consulted often results in legislation that overlooks our realities and pushes us further to the margins,” added Muller.

Nitasa’s key objections to the Bill are that it bans the display of cigarettes, outlaws the sale of single cigarettes, and that small and micro businesses will face a 10-year prison sentence for failing to comply with the law.

“If these clauses are not reviewed, South Africans that are earning an honest living will become criminals overnight,” and push many to the even more dangerous and thriving illicit market, said Muller.

Upon review, committee chairperson Dr Sibongisenbi Dhlomo said that legal opinion stated that while Nedlac has an internal protocol for considering matters, the Nedlac Act “does not prescribe a specific process that must be followed.”

He said that Nedlac is still empowered to continue engaging on the bill even after it has been introduced in Parliament.

“The legal opinion has provided clarity on the consultation process, and we are satisfied that the Department of Health has met the necessary requirements,” said Dhlomo.

 Dhlomo also said that he had spoken to Seftel, about the matter and the door remains open for suggestions.

Opponents of the bill seek further engagement to ensure stronger measures against illicit tobacco trade, better protection for small businesses, support for tobacco farmers, effective harm reduction strategies, and improved monitoring, while addressing concerns over reduced tax revenue and the impact on small-scale farmers.

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