Tobacco producers warn of potential legal challenge to anti-smoking bill.
A NATIONAL group representing tobacco dealers has warned that an anti-smoking bill is vulnerable to legal challenges because the previous parliament had left out many views gathered during public hearings in seven provinces and did not hold any in others.
The warning came from the South Africa Tobacco Transformation Alliance (Satta), which represents cultivators of tobacco plants and cigarette manufacturers, including Black Tobacco Farmers Association and British American Tobacco South Africa (Batsa).
The Tobacco Products and Electronic Delivery Systems Control Bill has yet to be finalised before being forwarded to the Union Building for President Cyril Ramaphosa’s signature.
“The process falls far short of government and Parliament’s requirements and lays Parliament open to a Constitutional Court challenge,” said Satta spokesperson Francois van der Merwe.
He said when the Health Department published the bill in 2018 and opened it for consultation, the public participation process was “deeply flawed from as far back as 2018”.
“For the last six years both the Department of Health (DOH) and, more recently, the Sixth Parliament seem to have got more wrong than they got right.
“More than 21 000 submissions were received in response ‒ but there is no evidence that any of the issues raised were even considered or addressed,” said Van der Merwe.
The bill proposed stringent regulations on tobacco product consumers, traders and manufacturers. These include that packaging of a tobacco product must have a uniform plain colour and texture and that “the brand name and product name may appear on packaging in a standard colour and typeface”.
The bill also instructs that the warnings on the health, social and economic effects of smoking should be accompanied by a picture, graphic or image. It also bans the selling of cigarettes through vending machines.
Traders would be banned from displaying cigarettes on the front shelves.
The Parliamentary Portfolio Committee on Health held hearings in seven provinces between August 2023 and February 2024 before the process was stopped without going to KwaZulu-Natal and Northern Cape.
Van Der Merwe said the hearings were “a box-ticking exercise, badly organised and poorly run”.
He said the bill was worsening the challenges of the legitimate tobacco industry, which was still recovering from the Covid-19 lockdown between 2020 and 2022 that led to a flood of illicit cigarettes into the market.
“Today, there are only 10 emerging tobacco farmers, down 92% from 2019 when there were 125. South Africa also has less than 155 commercial tobacco farmers ‒ 21% fewer than the 197 it had in 2019.
“The disappearance of 157 tobacco farmers, the retrenchment of thousands of tobacco workers and the halving of the sector’s contribution to the national fiscus can all be traced to lower demand for legal cigarettes,” he said.
Satta proposed that the government come up with laws that would balance public health and economic health.
“We propose a new process anchored in transparency, evidence-based policy-making, and a genuine commitment to finding common ground,” said Van der Merwe.
However, the South Africa Tobacco-Free Youth Forum (Satfyf) said it was happy with the bill in its current form.
“This bill is long overdue; it is close to 10 years old and has undergone a few consultation and review processes over the years.
“We need it passed ASAP because the more it is delayed, the tobacco industry is given more time to claim the lives of South Africans,” said Satfyf project co-ordinator Lesego Mateme.
Satfyf would have preferred a total ban of tobacco products, which it said were destructive to health, economy, environment and societies.
“Satfyf does envision a tobacco-free future, but we are equally aware that there need to be interventions in place to achieve this, especially with the knowledge of the addictive nature of these products.
“There need to be resources and interventions that will assist those who smoke to seamlessly transition from a lifestyle of smoking to one that is smoke-free,” said Mateme.
KwaZulu-Natal Health Portfolio Committee chairperson Dr Imran Keeka said the bill was still with the National Assembly and was yet to be placed before the National Council of Provinces.
“The bill from the previous term, would have lapsed at the end of the term and the regulation of parliament would be taken to revive the bill, and if the bill is revived there is a process that follows.
“It could be that the provinces have to do it (hold public hearings) again or only the outstanding provinces (KwaZulu-Natal and Northern Cape).”
He said he was not sure why the public hearings were not held in the province. He said possible reasons were that there was no budget to continue with public hearings or that it came to the province “very late” before the end of the government term.
Health Deputy Minister Sibongiseni Dhlomo said the health portfolio committee would take over from the process started by its predecessor “because there is no way that the Parliament would spend more money on public hearings.
“We are going to visit the two remaining provinces ‒ KwaZulu-Natal and Northern Cape,” said Dhlomo.
He could not comment on Satta’s allegation that the public hearings were flawed because he was not part of them.
“We are going to go with a report that was prepared by the Parliament on how the public hearings were conducted,” said Dhlomo.