New smoking laws coming for South Africa – including a 100% ban in certain areas

The Department of Health has gazetted the explanatory notes for the Control of Tobacco Products and Electronic Delivery Systems Bill, which it intends to introduce to the National Assembly in the coming weeks.
The proposed laws were first published for comment in 2018 after cabinet approved the draft bill.
According to the cabinet statement, the proposed legislation seeks to repeal the Tobacco Products Control Act of 1993 to promote public health and to align the South African tobacco control law with the World Health Organisation Framework Convention on Tobacco Control.
The draft bill is designed to address key areas relating to indoor public areas, display of tobacco products at point of sale, use of electronic devices and the introduction of plain packaging of tobacco products.
According to the explanatory summary, the bill provides for:
- 100% smoke-free for indoor public places and certain outdoor areas as the minister may prescribe;
- The ban on sale of cigarettes through vending machines;
- Plain packaging with graphic health warnings or pictorials;
- Ban on display at point-of-sale; and
- The regulation and control of electronic nicotine delivery systems and non-nicotine delivery systems and to provide for matters connected therewith.
The current smoking laws ban smoking in public places but allow for designated smoking areas in places like bars, taverns and restaurants, provided that they do not take up more than 25% of the venue.
The new laws, once passed, would change this to a 100% prohibition of smoking in public areas.
Analysis of the draft laws revealed a host of changes to the country’s smoking laws that will have a direct impact on many consumers, including employers, businesses and even homeowners.
Some of the most significant changes include:
- A ban on smoking in the workplace – is defined in the bill as ‘any place in or on which one or more persons are employed and perform their work, whether for compensation or voluntary’. This would mean homeowners may be banned from smoking in the presence of domestic workers or gardeners on the premises.
- If a home is used for teaching, tutoring or commercial childcare, smoking would also be banned.
- A ban on smoking in any motor vehicle when a child under the age of 18 years is present, and there is more than one person present in that vehicle.
- An extension of the laws to not only cigarettes but also any devices used in connection with tobacco products and electronic delivery systems such as pipes, water pipes and electronic devices.
- A ban on smoking in any enclosed common areas of a multi-unit residence.
- The Minister may prohibit smoking in any outdoor public place or workplace if they believe it would be in the public interest.
- Stricter rules on the depiction of any tobacco products – including a ban on the sale of any confectionery or toy that resembles or is intended to represent a tobacco product.
- Harsh jail time or a fine depending on the severity of the offence. For example, those caught smoking in banned areas will receive a fine or prison time up to 3 months, while those found guilty of manufacturing or importing tobacco products which do not meet the new requirements and existing standards could face a fine and imprisonment of up to 10 years.
Vaping
Included in the proposed laws are controls for e-cigarettes and other electronic nicotine and non-nicotine delivery systems, which have operated in a regulatory grey area over the years.
This has become a major sticking point for the burgeoning vaping industry, which has tried to distance itself from smoking and being bundled with ‘combustion’ and ‘burnt tobacco’ products.
Not only will the draft laws bring tighter regulation and controls on vapes and e-cigarettes, the industry is also facing higher taxes, as the government moves to clamp down on oils and tools used.
Under National Treasury’s proposal for excise taxes on vapes, the average excise rate for e-cigarettes is proposed at R2.91 per millilitre and apportioned in a ratio of 70:30 between nicotine and non-nicotine elements.
British American Tobacco South Africa, which has a stake in the vape sector, has argued that taxing e-cigarettes at this rate would encourage an illicit industry to form, saying that a rate of 70c per millilitre would be fairer.
It also argued that the taxes would make vaping more expensive than cigarettes, pushing smokers back to the ‘more harmful’ tobacco trade.
The Vapour Products Association has since called on businesses to oppose the excise duty and for the Treasury to conduct further market research on the implications of its proposal.+
Read: Proposed ‘vape tax’ could see prices more than double in South Africa