The Tobacco Products and Electronic Delivery Systems Control Bill has been tabled before parliament, starting the process of getting proposed changes for smokers and the tobacco industry into law.
An explanatory note on the proposed laws was gazetted in October, with the Department of Health giving notice that the bill would be tabled in the National Assembly before the end of the year.
The bill was tabled on 9 December 2022, and will now proceed through the National Assembly, the National Council of Provinces, and ultimately be sent to the president for assent.
Broadly, the bill provides for the banning of smoking in public places and outdoor areas as prescribed by the minister, as well as changes to the advertising and packaging of tobacco products.
One of the more controversial aspects of the bill, which has faced backlash from the burgeoning vape or e-cigarette industry, are regulations controlling electronic nicotine delivery systems and non-nicotine delivery systems and matters connected with the sector.
The laws empower the minister to make a host of regulations:
- The distance within which smoking is prohibited from an operable window or ventilation inlet of or entrance and exit of an enclosed public place or workplace;
- The prohibition on smoking in or at an outdoor public place or workplace, or such portion of an outdoor public place or workplace, where smoking may pose a health, fire or other hazards;
- The actions that must be taken by the owner or person in control of public places to prevent smoking;
- Any sale restrictions or additional requirements to prevent access to a relevant product or a related product by children;
- Various measures to regulate and control the packaging and display of tobacco products; and
- How these regulations apply to electronic systems – vapes/e-cigarettes.
Depending on which regulation is violated, those found in contravention of the proposed laws could see themselves with a fine or a prison sentence or both.
The prison sentences range between 3 months for smoking where you shouldn’t – to 20 years for selling tobacco products to children.
These are some of the biggest changes to expect:
No smoking areas:
The bill lays out a long list of areas that will be regarded as no-smoking zones, with violators at risk of fines or prison time. These include:
- An enclosed public place, enclosed workplace, or in or on a public conveyance;
- Any space that is within a prescribed distance from an operable window or ventilation inlet of an entrance or exit of a place where smoking is prohibited;
- Any motor vehicle or a private enclosed space when a non-smoker or a child is present;
- An enclosed common area of a multi-unit residence;
- A private dwelling or elsewhere on the premises of a multi-unit residence if smoking interferes unreasonably with the enjoyment of other persons lawfully on the premises, pursuant to the Sectional Titles Act and the Sectional Titles Schemes Management Act, 2011 (Act No. 8 of 2011);
- A private dwelling, if that private dwelling is used for any commercial childcare activity, child stay, for schooling, tutoring, domestic employment or otherwise as a workplace;
- The minister may also, at their discretion, ban smoking in any prescribed outdoor public place or workplace, or such portion of an outdoor public place or workplace as may be prescribed, where smoking may pose a health, fire or other hazards; or any other place where the Minister considers it appropriate to prohibit smoking in order reduce or prevent the public’s exposure to smoking.
Owners, employers and domestic workers
According to the bill, it is up to the owner of or person in control of a public place, public conveyance, workplace, or multi-unit residence where smoking is prohibited to ensure that no smoking takes place.
This includes displaying signs indicating the smoking is not allowed.
Employers, meanwhile, must ensure that:
- Employees may object to any person smoking in the workplace in contravention of this Act without retaliation of any kind;
- Employees who do not want to be exposed to smoke at the workplace are not so exposed; and
- It is not a condition of employment, expressly or implied, that any employee is required to work in any outdoor portion of the workplace where smoking is permitted.
For the purpose of this clause, ‘‘employer’’ means any person who employs or provides work for any person and remunerates that person or expressly or tacitly undertakes to remunerate him or her. By implication, this means that this clause protects domestic workers.
Packaging and retail
Under the proposed laws, no form of advertising for tobacco products can exist. While this has been the case in media and sponsorships for several years already, the new bill kicks this up a notch.
When enacted, no tobacco products can be visible at the point of sale, and retailers and wholesalers – with a few exceptions – may only present the products upon request by a customer.
The laws would also empower the minister to determine the exact packaging for tobacco products, including the materials used and the typeface and images on display.
Brand names and other identifiers will be made as standard or generic as possible:
All brand elements on, inside or attached to the packaging or on an individual tobacco product are prohibited unless the brand name and product name appear in a standard colour and typeface, together with other permitted or mandatory information such as manufacturer’s details, health warnings, pictures, graphics and images and fiscal identification markings.
The laws also empower the minister to make regulations for the packaging and labelling of an electronic nicotine delivery system, electronic non-nicotine delivery system and a tobacco device, which may also include standardised packaging.
On top of health warnings already displayed on tobacco products, the new bill makes provision for a leaflet to be included with the products, which outlines the health impact of using the product.
For both tobacco and electronic delivery systems, the packaging for a product must display a message on each principal display area of the packaging relating to either or both the harmful health, social, economic or other harmful effects of using the product; and the benefits of stopping the use of the product or of not using the product.
Only prescribed images and messages from the department may be used, and the warnings are not allowed to be less than 65% of each principal display area.
Sweet tooth – and no delivery
The proposed laws put a blanket ban on the sale of any confectionery or sweets that look like tobacco products. These are part of a wider clampdown to keep these products out of the hands of children.
“No person shall sell or offer to sell or supply any confectionery or toy or any item designed to resemble or has the likely effect of promoting a relevant product or related product.”
In addition to this, the laws also put a restriction on the sale and delivery of relevant products through online and courier delivery
“No person shall sell, offer for sale, supply or distribute a relevant product or related product to a consumer through the postal services, courier services, internet or any other electronic medium, or by any other means as may be prescribed in furtherance of the objectives of the Act.”
“No person shall buy a relevant product or related product through the postal and courier services, internet or any other electronic medium, or by any other means as may be prescribed in furtherance of the objectives of the Act.”