Name of law: Tobacco Products And Electronic Delivery Systems Control Bill, 2018
Applies to: Everyone in South Africa, especially
- -persons who smoke;
- -those who manufacture, distribute, sell, advertise or promote or sponsor tobacco products;
- -employers and employees; and
- -persons who operate or who are in charge of public spaces including bars and restaurants.
The Bill is largely the same as the previous Act which is to be repealed. It bans smoking in all public places, regulates electronic tobacco devices; bans the use of vending machines and all forms of tobacco advertising, including the display thereof.
It also will regulate the look and feel of tobacco product packaging.
A number of the provisions are vague which have to be fleshed out by regulation.
Details of the Law
In 2018, Cabinet approved the Control of Tobacco Products and Electronic Delivery Systems Bill of 2018 at the end of April 2018 which was thereafter published for comment.
Fast forward some four years later and it appears that the that the Bill is back on the agenda, as has been confirmed by the Department of Health, who last week published an explanatory summary of the Bill in Government Gazette 46994.
The Bill aims to
- repeal the Tobacco Products Control Act, 1993 (Act 83 of 1993);
- promote public health and to align the South African tobacco control law with the World Health Organisation Framework Convention on Tobacco Control;
- address key areas relating to indoor public areas;
- regulate the display of tobacco products at point of sale;
- regulate the use of electronic devices; and
- introduce 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 (ENDS) and non-nicotine delivery systems (ENNDS) and to provide for matters connected therewith.
According to reports the “bill is a strong updated piece of legislation that closes loopholes and addresses aspects not covered by current legislation, such as the proper regulation of novel products including e-cigarettes. Proposals in the bill, in particular 100% smoke-free public places, health warnings and a complete ban on all marketing and advertising, come at low or no cost to the State. Passing the bill will reduce exposure to tobacco, delay initiating young people to smoking and bring South Africa’s domestic legislation closer to full implementation of the World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC), a global standard.”
Ayo-Yusuf points out that the Bill is about more than health, and that strong tobacco control is good news for the economy.
“Tobacco-related premature deaths through non-communicable diseases and other tobacco-related diseases stifle South Africa’s economic development.
“As tobacco use is currently estimated to cost South Africa R42bn per year in tobacco-related illnesses, reducing these costs is essential. Keeping numbers of people needing healthcare down is further central to the sustainability of the National Health Insurance, so that numbers are kept at a level where it is possible to provide good quality care to all that need it.”
Where to from here?
So how long will it be before the Bill can become law and what are the next steps? The Government Communication and Information System (GCIS) will gazette the Bill for information. At this point, the Bill is a public document and anyone can access it, once gazetted.
Simultaneously, the Bill will progress to Parliament.
First, it goes to the Speaker of Parliament, followed by the Health Portfolio Committee, which then calls for Parliamentary public hearings and votes on it. Then, it’s tabled before National Assembly (NA) for a vote.
If it passes, it goes to National Council of Provinces (NCOP) which takes it to provinces for provincial public hearings. Five of the nine provinces must support it so it can be signed into law by the President.
“There are many variables in these timeframes, but our hope would be that we can move through these processes and see the Bill signed into law within 2023,” says Ayo-Yusuf. “The Bill was first published in 2018 and closed for public consultation in August of that year. We cannot afford to lose more time and more lives.”
The first Global Adult Tobacco Survey conducted in South Africa (GATS-SA) in 2021, which showed high levels of tobacco use (29.4%) and secondhand smoke exposure, further supports the implementation of the Bill, says Dr Catherine Egbe, specialist scientist within the South African Medical Research Council (SAMRC) alcohol, tobacco and other drugs research unit.
“Government now has all the empirical evidence needed to support and progress every aspect of the measures in the new Bill.”
GATS-SA results further show that the Bill has strong public support, including support for 100% smoke-free public places. “88.4%, or nine out of 10 adults support a ban on smoking in indoor workplaces and public places, which confirms that people are conscious of their right to an environment that is not harmful to health. Through passing the Bill, government would be adhering to their constitutional mandate to provide health-enhancing environments for our society,” says Egbe.
We have long campaigned for better measures that can reduce the impact of NCDs, including cancer, on South Africa, which are currently responsible for the deaths of 50,9% of South Africans and cause major ill health and suffering,” says Lorraine Govender, national manager, health promotion, CANSA.
“We are excited to see that the Bill is making progress through legislative processes and look forward to stronger legislation that will better protect our health.
“Our youth deserve better protection from tobacco and e-cigarettes,” says Sanele Zulu of the South African Tobacco-Free Youth Forum (Satfyf). “Through implementing the cost-effective, proven measures in the Bill, including restrictions on tobacco-industry marketing activities and prominent health-warning labels, we can turn the tide on youth addiction to nicotine. This cannot happen soon enough.”
Five key measures in the Bill
1.Smoke-free public places
When it comes to exposure to smoke, the Bill will require 100% smoke-free indoor, and certain outdoor, public places. This is essential as many South Africans are exposed to second-hand smoke, says Egbe.
GATS-SA shows that 11.2% are exposed to second-hand smoke at work (7% are non-smokers) and 18% at home (9.6% are non-smokers). Women are mostly exposed at home from their partners, according to Egbe, while very few have the power to make their homes smoke-free.
An alarming 74.4% of people are exposed at bars, taverns, pubs, shebeens or night clubs, 10.8% at restaurants and 5.8% at government buildings, which are supposed to be smoke-free.
About 4% are even exposed at healthcare facilities. Egbe highlights that a concerningly high percentage of non-smokers are exposed at educational institutions. Of the 16% exposed to second-hand smoke in tertiary Institutions, 46.3% are non-smokers, while 20% of people are exposed in schools, 35.2% of whom are non-smokers.
“93% of South Africans believe that smoking can cause serious illnesses, and the same percentage believe that breathing other people’s smoke can cause serious illnesses in non-smokers,” says Egbe.
2.Plain packaging for tobacco and nicotine products
80% of smokers say they notice current textual health warnings on cigarette packs, but less than 40% said seeing current warnings would make them think of quitting.
When it comes to hookah, most hookah smokers don’t even see the packs. Less than half say they noticed health warnings, and 19% said they would think of quitting based on current packs.
Smokeless tobacco showed the same ratio, with only 52% noticing warnings and 25% saying the warnings made them think of quitting.
“What we have is not effective,” says Egbe. “We need more to encourage people to quit and stop people starting. 67% of smokers agree that textual health warnings would not stop them from smoking, while 58% said graphic health warnings, showing the health consequences of tobacco use, would encourage them to quit. This tells you that the plain packaging and graphic warning policy can help and is supported.”
3.Regulating electronic cigarette use
Emerging products including e-cigarettes and hookahs are mostly used by younger age groups – with the highest percentage usage of e-cigarettes being in the age 15 to 24 category.
Alarmingly, 21% of people have been using these products for more than two years, says Egbe. “While e-cigarettes are positioned as a smoking cessation aid by the industry, this wasn’t always the case. When they were going to be brought into the country, the Department of Health tried to stop them.
Egbe continues: “In court documents, industry clearly stated that these products would not serve as cessation aids, and are not going to be marketed as such. Now, when the department is trying to regulate the product, it is presenting them as smoking cessation aids. In South Africa, medicines are regulated by SAPHRA. So, if these products are to be presented as cessation aids, they would need to be certified and passed through the standard procedure. Even normal nicotine patches that are available over the counter went through that procedure.”
Egbe says we have been contaminated with misinformation from the electronic cigarette industry. “When e-cigarettes are marketed to smokers, they simply want them to switch addiction. That is worrying. We want users to quit for good. When you quit tobacco, you should become free from nicotine as well.”
4.Removal of points-of-sale ads
Egbe says it is not coincidental that younger people are the biggest noticers of tobacco promotion, at 37% in the 15 to 24 age range. Egbe highlights that in the UK and other countries, tobacco products are not allowed to be on display. “When you want to buy cigarettes, you don’t see them. They are in a cupboard; you only see the price list. This is what we need in South Africa, and this is what the Bill wants to make happen.”
When it comes to e-cigarettes, regulation of advertising is critical. “We’ve all seen the prominent, brightly coloured displays of e-cigarettes in malls, kiosks and stores. You don’t see cigarettes displayed like this; it is not allowed,” says Egbe. “However, because the current law doesn’t include e-cigarettes, the industry exploits this legislative vacuum. The youth is clearly its market.”
5.Removal of vending machines
Tobacco products are dangerous and should not be accessed by under-age people, says Egbe. Vending machines further serve as display advertising, that all ages can access. These products should not be associated with chips and candies as you see happen with the display in vending machines.
Egbe highlighted the need to protect young people from being targeted, saying the statistics on tobacco-use initiation call for sober reflection. Most young people between the ages of 15 and 24 (77.1%) purchased their cigarettes from spaza shops and kiosks.
“GATS-SA shows that almost 75% start smoking before they can really make the distinction between what is addiction and what is not. 18% start before they are 15, and 43% by 16. We cannot have young people, who are still trying to figure themselves out, being introduced to an addictive substance.”
The bill mainly focuses on ensuring the following:
100% smoke-free indoor public areas
Non-smokers face the same risks that smokers do even when they are not the ones smoking. Second-hand smoke causes serious illnesses like cancer, stroke and lung diseases. Introducing 100% smoke free public areas is the only effective way to protect non-smokers.
Plain packaging with pictorial health warnings for all tobacco products including e-cigarettes
The current packages serve to market tobacco and related products, and to mislead the public about the related harmful effects. Plain packaging and picture health warnings will make health warnings more visible and reduce the appeal and will create more awareness about the dangers of these products.
The regulation of electronic cigarettes
E-cigarettes are harmful, their use has been linked to cancers, lung and heart diseases. They also affect the brain development of adolescents. They promote nicotine addiction and may lead to tobacco use among the youth.
Banning of the sale of tobacco and related products in vending machines
Currently, children can easily access tobacco and related products in vending machines. This Bill completely bans the sale of these products in vending machines to protect children.
Banning tobacco advertising at retail and point of sale
Currently, the tills at retail outlets are used to advertise tobacco and related products to lure the youth to buy products. Banning advertisement at retail point of sale protects the youth from unintentional buying and beginning to smoke.
- Benefits of the Tobacco Control Bill
- Promotes the rights of non-smokers from exposure to second-hand smoke (Section 24 (a) of the Bill of Rights in the Constitution of RSA)
- Prevents young people from starting to smoke
- Research indicates that regulating the use of tobacco and related products reduces smoking rates, which reduces the tobacco related diseases and deaths, and results in less pressure on the health system
- Billions of rands will be saved if people don’t get sick and this will drive enormous economic benefits.
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