New smoking laws for South Africa

The government and representatives from labour, business and communities at Nedlac want to add another punishable offence to the list under the new smoking laws for South Africa.

On top of facing fines or prison time for smoking around children or in public spaces, Nedlac supports making the sale of tobacco products below the trade-discounted price an offence.

The trade-discounted price of a product is the reduced price from the listed price, typically given to customers who purchase that product in larger quantities, such as wholesalers or retailers.

Selling below this price could distort the market, perhaps make the products more appealing to customers, or, in the case of tobacco products, encourage their use.

Critically, selling below market prices is one of the ways illicit traders maintain a strong foothold.

According to Nedlac, all social partners agreed to include this activity as an offence under Section 16(4), with a maximum penalty of 15 years’ imprisonment.

In general, they want to link this to other sections of the new laws to curb illicit trade practices through pricing manipulation.

Notably, the formation of a new offence under the proposed laws is one of the very few pieces of the Tobacco Products and Electronic Delivery Systems Control Bill that all stakeholders agree on.

Feedback from consultation with Nedlac, which were concluded in February and signed off in March, show that businesses, labour, communities and the government are still very much at odds over the laws.

The results of the consultations were presented to the Portfolio Committee on Health this past week, revealing significant opposition to many sections of the bill.

Broadly, the bill aims to regulate tobacco and electronic delivery systems in South Africa through various measures. These include:

• Introducing plain packaging and health warnings.
• Banning smoking in all indoor public spaces and certain outdoor areas.
• Banning advertising, promotion, sponsorship, vending machine sales, and sales to minors.

The overall aim is to align South African law with World Health Organisation obligations and to modernise regulations to deal with emerging technologies like vapes and e-cigarettes.

The bill was revived under the new administration in July 2024, but received blowback from businesses and unions at Nedlac, leading to more consultations being done.

However, the group’s report on these consultations shows clear divisions among the various stakeholders.

Some sections of the proposed laws, such as the move to standardise all packaging, have received virtually no support from any stakeholders.

Other disagreements and concerns, especially those emanating from business, have cropped up over the restriction of sales and the restriction of display and advertising, as well as the power given to the minister of health to intervene in the sector.

While the feedback from Nedlac shows consensus among all the stakeholders for the need to update South Africa’s smoking laws and to pursue better health outcomes for the country, the economic impact and powers of the government to intervene are still big sticking points.

This reflects similar feedback noted in the government’s engagements with communities in wider public consultations.

Smoking and vaping in your own home

A point of contention that arose around the laws was the outright ban on smoking in places of work – particulary if a domestic residence was used as a place of work.

The original clause prohibited all smoking in dwellings used for childcare, tutoring, or as workplaces.

Under these conditions, anyone who employs a domestic worker would have made their home subject to the ban.

The latest deliberations found agreement among most representatives to make changes to these provisions.

After deliberation, business, government, and labour agreed to revise it so that smoking is only banned during working hours.

The phrase “domestic employment” was also removed, as it’s already covered under “workplace”.

The only representatives to disagree with this move were the community reps, who called the change impractical.

Business also proposed allowing electronic delivery systems (aka vapes etc) to be used in designated areas (maximum 25% of venue), citing lower health risks and distinct properties not like combustible tobacco.

However, this proposal fell flat, with government, labour, and community reps finding that second-hand EDS emissions are harmfu, and the bill aims to eliminate all designated smoking areas to protect public health.