‘Draconian’ tobacco bill is a misguided and punitive blunt instrument

7 July 2023

By: Lloyd Phillips

The Department of Health has been accused of failing to follow legally required processes with proposed legislation that critics say will collapse the legal tobacco value chain and make criminals of numerous otherwise law-abiding citizens.

Representatives of South Africa’s tobacco value chain pulled no punches on Thursday while giving their perspectives on the Department of Health’s Tobacco Products and Electronic Delivery Systems Control Bill.

They described it as draconian and a blunt instrument that seeks to make criminals of otherwise law-abiding smokers and retailers, especially informal traders.

Speaking at a press conference in Johannesburg, tobacco industry representatives did not deny that consumption of tobacco, especially in combustible products, is harmful to human health. 

But if the bill was passed in its current form, they said, it would have numerous knock-on negative effects throughout the already ailing legitimate tobacco value chain and society in general.

Francois van der Merwe, director of Limpopo Tobacco Producers, said that since the five-month ban on tobacco sales early in the 2020 Covid-19 lockdown, the illicit trade had run rampant to the point where it now controls 70% of all tobacco product sales.

Illicit products generate no tax income for the fiscus and the criminal syndicates behind them invariably export their huge profits out of the country, he said.

Furthermore, the illicit trade adheres to no regulations about maximum tar and nicotine levels and doesn’t care if its customers are underage.

“Government has turned a blind eye to the illicit sector. Government has let criminal networks take over the market. Government has let criminals roam free,” said Van der Merwe. “And yet, the same government has now stepped up to say, ‘We need new tobacco laws that will make life hell for all in the legal value chain, as well as consumers’.”

Johnny Moloto, general manager of British American Tobacco South Africa (BATSA), said the company had had to massively reduce production and jobs due to the booming illicit tobacco trade. In turn, this had severely hamstrung its development initiatives that were supporting black farmers to grow tobacco and other crops.

Moloto said it was “egregious” that the Department of Health, which is driving the tobacco bill, did not recognise the opportunity that the advent of “less harmful” nicotine products presents for giving consumers a way to move away from smoking more harmful combustible tobacco products. Instead, the tobacco bill treats e-cigarettes and similar products in the same way as cigarettes, he said.

The tobacco industry representatives highlighted the harsh penalties proposed by the tobacco bill, saying they would more than likely target otherwise law-abiding, and possibly even unintentionally ignorant, businesses and citizens, while the criminal illicit trade remained unmolested.

Examples of these penalties include:

  • Three months’ imprisonment plus a fine for smoking or vaping in a private dwelling if this “interferes unreasonably with the enjoyment of other persons lawfully on the premises”;
  • Six months’ imprisonment plus a fine for smoking in a vehicle with a non-smoker, non-vaper or child present;
  • Five years’ imprisonment plus a fine for smoking or vaping in a private dwelling where domestic employment takes place;
  • Ten years’ imprisonment plus a fine when a person contravenes any advertising and marketing prohibitions. To illustrate this, Van de Merwe showed a video of a fictitious scene where an elderly informal trader is arrested for having a small tub of tobacco snuff for sale on her table alongside the fresh produce she also sells;
  • Fifteen years’ imprisonment plus a fine for purchasing relevant products online; and
  • Twenty years’ imprisonment plus a fine for selling relevant products to under-18s.

Van der Merwe and Moloto said the DoH had not followed legally required processes in drawing up the tobacco bill. They had not held comprehensive and widespread public consultations, and they had failed to submit the bill to the National Economic Development and Labour Council before tabling it in parliament.

“There is already very good tobacco control legislation in South Africa but it needs to be enforced properly. The proposed bill is 10 times more draconian and even more unenforceable,” said Van der Merwe.

“These proposals, along with many others in the bill, will be the death knell for a legal industry that is more than 120 years old. At the same time, and contrary to the stated objective of reducing it, cigarette consumption will continue to increase with cheap, unregulated products.”

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