Vol 4, No. 6

LEGISLATIVE UPDATES

Tobacco Products Control Amendment Bill, 1998

1. Introduction/Background

The Tobacco Products Control Amendment Bill was published in the Government Gazette on 14 August 1998. The Bill proposes amendments to the Tobacco Products Control Act, 1993. The original Act of 1993 allows for the prohibition and restriction of smoking in public areas, and for the control over the sale and advertising of tobacco products. The amendments which are proposed in the Bill include changes to existing clauses to improve enforcement and administration, as well as additional clauses to be inserted in the Act.

Drafts of the Bill have been circulating since 1997. The Minister of Health tabled the Bill in the National Council of Provinces on 7 September 1998.

2. The need for amendments

It is estimated that about seven million people in South Africa smoke. Research conducted by the Medical Research Council in 1994, estimated that it costs the public sector approximately R1.5 billion in medical fees to treat people who fall ill as a result of smoking related diseases. It is also estimated that South Africa loses about R2.5 billion annually in lost production as a result of smoking related diseases. Further, in 1997, R8.5 billion was spent by the public on tobacco products, while the government received R3.6 billion in tobacco taxes.

The Tobacco Products Control Act, 1993, enacted the following provisions:

• it enabled the Minister of Health, after consultation with Local Government, to restrict smoking in public places;
• it prohibited the sale and supply of tobacco products to persons under the age of 16 years;
• it made the use of warning labels on all tobacco products and in tobacco advertising obligatory;
• it restricted vending machines to areas inaccessible to persons under 16; and
• it allowed for persons found guilty of offences to be liable to a fine and/or imprisonment not exceeding 6 months.

Some of these provisions have been amended in order to make them clearer.

Additional amendments include proposals which were not in the original Act. This specifically relates to the restrictions on advertising, promotion and free distribution. It is believed that health warnings on packages and advertisements do not really prevent people from beginning to smoke. In addition, the role of advertising and sponsorships in promoting smoking has increasingly come under the spotlight. The original Act only allowed for advertisements to include the prescribed health warning; but the Department of Health believes that there needs to be greater control over advertising and sponsorship, consistent with the aims of health promotion strategies.

A preamble is included in the Bill, which states, amongst others, that smoking cannot be banned due to its wide acceptance. The Tobacco Products Control Amendment Bill therefore proposes stricter control of advertising and sponsorship by tobacco companies, amongst other provisions. The objective of the Tobacco Products Control Amendment Bill is to discourage the use of tobacco products (including cigarettes, snuff, and chewing tobacco) and to prohibit various types of promotion and advertising of tobacco products in order to reduce the incidence of tobacco related illness and death.

3. Summary of the Contents of the Bill

3.1 Smoking in public places

The Bill enables the Minister of Health to prohibit or restrict smoking in public places, by notice in the Government Gazette. The definition of "public place" has been widened to include a workplace.

The Bill extends the power of the Minister in relation to restricting smoking in public places, as the Minister no longer needs to consult with local government before regulations are made. Further, local authorities are now clearly obligated to enforce any national regulations, unless the local authority has made its own regulations in regard to smoking in public places.

3.2 Advertising, sponsorship, and promotion

The Bill substitutes the entire section 3 of the original Act, by providing for new clauses in relation to advertising and financial contributions by tobacco companies. The Bill prohibits anyone from advertising tobacco products, or using tobacco trademarks, logos, brand/company names to advertise any organisation, service, or event. In addition, the Bill prohibits tobacco companies from promoting or providing financial sponsorship to any organised activity or individual, if such contribution involves the use of the company’s trade mark, logo or name. This applies to any activity which takes place in whole or in part in South Africa. These clauses will therefore prohibit the use of tobacco company names, or logos, in such activities as the "Rothmans July" or "Camel Trophy", or on sporting uniforms for example.

Tobacco retailers, however, will be allowed to indicate the availability of tobacco products at the point of sale, provided that such notices are in accordance with regulations.

3.3 Required information

Tobacco products will be sold or imported only if they are packaged, to prevent the sale of single cigarettes. This provision also aims to further limit the sale of cigarettes to children under the age of 16. In addition, the package needs to include the prescribed warning and the quantities of nicotine, tar and other constituents of the tobacco product.

3.4 Maximum yields of tar and other constituents

The Minister is empowered to declare the maximum levels of tar, nicotine and other constituents which tobacco products may contain.

3.5 Free distribution and reward

The Bill prohibits manufacturers, distributors, importers or retailers from distributing tobacco products for free, or at a reduced price. The only reduction in price which will be allowed is the normal trade discount.

In addition the Bill prohibits the issuing of rewards or gifts to persons in return for the purchase of any tobacco product.

3.6 Vending Machines

The original section on vending machines has been amended slightly in order to allow for better administration. Vending machines are required to be put in places inaccessible to persons under the age of 16. It is now the obligation of the person who is responsible for, or has control of the premises where a vending machine is located, to ensure that no person under the age of 16 uses the machine.

3.7 Offences and penalties

Section 7 of the original Act is substituted with a new section on offences and penalties which is more specific and provides for set fines. Any person who contravenes the regulations on smoking in a public area will be liable for a fine of R200. Anyone who sells or supplies tobacco products to persons under the age of 16 will be liable for a fine of R10,000. Similarly, anyone who contravenes the section on vending machines is liable to a fine of R10,000.

Any person found guilty of contravening the sections on advertising and sponsorship, or who contravenes the section prohibiting free distribution or rewards, is liable to a fine of R200,000.

Similarly, any company which does not comply with the maximum yields of tar, nicotine and other constituents is liable to a fine of R200,000.

3.8 Other provisions

• The Bill also allows for the phasing in of the proposed legislation. Thus, different sections of the bill could come into operation on different dates.

4. Some Issues Raised

• The Bill raises debate around specific rights contained in the Bill of Rights. In particular two rights which are clearly related to the clauses in the Bill are the right to "freedom of expression" clause (section 16(1)) and the right to an "environment that is not harmful to (one’s) health" (Section 24(a)). Concerns have already been expressed in the public media about the limitation on the freedom of expression being introduced by the clauses which restrict advertising and sponsorship. However, others have raised the issue of tobacco being a substance which is harmful to people’s health, and thus requiring stricter control over it. How should these competing rights be evaluated?

• Unions and business have argued that the proposals will lead to job losses in the tobacco sector as well as in other sectors such as advertising and sport. In addition, it has been stated that the Bill will have negative repercussions on neighbouring countries which supply South African companies with most of the tobacco. The Department of Health has stated that discussions between itself and the Ministries of Trade and Industry, Agriculture, Labour and Sport, were held after a request by Cabinet that these Ministries all be involved in drawing up the legislation. How should one weigh the impact of these measures on jobs and the economy of South Africa and its neighbours?

• Are there any initiatives to encourage tobacco farmers to grow alternative crops?

• What effect will these proposals have on cultural and sporting activities, as these activities often receive huge sponsorships from tobacco companies? Are there alternative sources of funding available for these activities?

• What health promotion initiatives are being developed by the Department of Health, to prevent youngsters from beginning to smoke. Legislation is only one form of intervention. What other approaches are being used to address the impact of peer pressure as well as other popular media such television and movies, for example, which continue to tie smoking with images of status.

5. The Way Forward

The Bill was passed by the National Council of Provinces, with slight amendments, on 9 October 1998. Eight of the nine provinces voted in favour of, with only the Western Cape voting against, the Bill.

The National Portfolio Committee on Health will hold public hearings on the bill on the 19 and 20th of September. The deadline to apply for oral submissions is 8 October 1998, and the deadline for written submissions is 19 October 1998. If you would like to make a submission on the bill please contact the Portfolio Committee on (021) 403-3700.

PHILA

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