The Control of the Tobacco and Electronic Delivery Systems Bill is a crucial cog in the journey to ensuring that health is indeed one’s wealth.
Inherently each person is responsible for their health – however, the math it is not always that simple and the draft bill that is currently before Parliament is aimed at strengthening South Africa’s public health protection measures.
If passed, the bill will institute smoke-free indoor public and certain outdoor places, ban the sale of cigarettes through vending machines; introduce plain packaging with graphic health warnings/pictorials; ban display at point of sale, and regulate as well as control Electronic Nicotine Delivery Systems (ENDS) and Non-Nicotine Delivery Systems (ENNDS).
Public comment on the bill was sought after it was first published in May 2018 when the Department of Health obtained Cabinet approval to publish the bill. In September 2022, Cabinet announced that it had approved the submission of the bill to Parliament.
The bill seeks to repeal the current Tobacco Products Control Act, 1993 (Act 83 of 1993), as amended. It seeks to strengthen the country’s public health measures and align them with the World Health Organisation Framework Convention on Tobacco Control, to which South Africa is party to the framework.
According to Cabinet, the bill has gone through extensive consultation with various stakeholders, including the tobacco industry, civil-society organisations and relevant government departments.
The first Global Adult Tobacco Survey conducted in South Africa (GATS-SA) in 2021, showed high levels of tobacco use and second-hand smoke exposure. The survey, says Specialist Scientist within the South African Medical Research Council (SAMRC) Alcohol Tobacco and Other Drugs Research Unit, Dr Catherine Egbe, supports the implementation of the bill.
According to the GATS-SA, about 29.4% of South Africans use one form of tobacco product or the other.
“There are about 25.8% of South Africans using one form of smoked tobacco product or the other, while about 4.3% are using the smokeless products like the snuff, chew tobacco, and so on. This doesn’t include electronic cigarettes. This is just tobacco products, “she says.
GATS is a global standard household survey aimed to enhance countries’ capacity to develop, implement and monitor tobacco control interventions through systematic monitoring of adult tobacco use and tracking of key tobacco indicators.
The results of the GATS-SA also shows that the bill has public support for 100% smoke-free public places with 88.4%, or nine out of 10 adults supporting a ban on smoking in indoor workplaces and public places.
This, she says, gives government empirical evidence needed to support “and progress every aspect of the measures in the new bill.”
Smoke-free public places
Among the measures introduced in the bill include smoke-free indoor public spaces and certain outdoor public places – a move which is essential to protect South Africans from second-hand smoke. Data from the survey – which sampled 7 245 households– shows that 11.2% of South Africans are exposed to second-hand smoke at work (7% are non-smokers) and 18% were exposed to tobacco smoke inside their homes (9.6% are non-smokers). A further 10.8% (1.1 million) were exposed to tobacco smoke when visiting restaurants.
In the current legislation, smoking is banned in public places, however designated smoking areas are permitted in places like restaurants and bars, provided that these areas don’t take up more than 25% of the venue.
Deputy Director at the National Council Against Smoking (NCAS), Dr Sharon Nyatsanza, says the bill is comprehensive and tackles advertising, marketing as well as the creation of a smoke-free environment.
“Because we run a quit line on 011 720 3145, we also get calls from people complaining about second-hand smoke in restaurants, or sometimes concerning apartments, where neighbours smoke in such a way that others find it difficult to stay in their own apartment.
“This bill does touch on those things because it says even in a private dwelling, a person cannot smoke in such a way that they unreasonably interfere with the next person. It talks about how you can’t smoke in a house where a child is present. Some of course will say well, how do we enforce that?”
While you can’t have a policeman in the home, “some of those laws are self-enforcing.”
“What you are trying to do is to empower the non-smoker so that they have a leg to stand on,” she explains.
Packaging
The bill also provides for plain or standardised packaging for tobacco and nicotine products. This means that the packaging of tobacco products must have a uniform plain colour and texture and that only the brand name and product name may appear on packaging in a standard colour and typeface.
Nyatsanza adds that the current health warnings on tobacco products only take up about 20% of the pack and are only in the form of text.
“A lot of countries globally have moved [away] from that type of packaging to introduce pictorial warnings which are more visible. When the new bill is passed you will see that we will move to a different kind of pack, ‘deglamorising’ cigarette packaging.”
She points out that with the global movement to try and close down marketing opportunities for tobacco companies, the pack “has become the last main area of advertising for cigarettes specifically.”
Unlike other countries who have put in place graphic health warnings on cigarette packaging, South Africa is still using text health warnings that are not up to the standard of the World Health Organization (WHO) Framework Convention on Tobacco Control, to which the country is a signatory. WHO FCTC was developed in response to the globalisation of the tobacco epidemic and is an evidence-based treaty that reaffirms the right of all people to the highest standard of health.
Points of sale
The bill also makes provision for the removal of points of sale advertisement and marketing. In countries like the United Kingdom, says Egbe, cigarettes are sold in cupboards that are closed, “you don’t see them displayed, so that it doesn’t attract children.”
Electronic cigarettes
The bill also talks to the regulation of electronic cigarettes which are not regulated under the country’s current Tobacco Products Control Act.
According to the WHO, there are many different types of e-cigarettes in use which are also known as ENDS and sometimes ENNDS.
These systems heat a liquid to create aerosols that are inhaled by the user. “These so-called e-liquids may or may not contain nicotine (but not tobacco) but also typically contain additives, flavours and chemicals that can be toxic to people’s health, “notes the WHO.
“Most if not all the regulations on tobacco are applicable to e-cigarettes,” adds Egbe while also noting that emerging products including e-cigarettes and hookah are mostly used by younger age groups – with the highest percentage usage of e-cigarettes being in the 15-24 age group.
Positioned as smoking cessation aids by the industry, Egbe explains that the Department of Health (of which the SAMRC is a public entity of) tried to stop e-cigarettes from being brought into the country.
“Now, when the department is trying to regulate the product, they are saying that they are smoking cessation aids. The consequence of having a law that has not been updated in line with changes in the market is that product like e-cigarettes are unregulated currently.”
In South Africa, medicines are regulated by SAHPRA [South African Health Products Regulatory Authority]. So, if you want to present these products as cessation aid, get them certified, pass [them] through the normal procedure. Even the normal nicotine patches that is available over the counter went through that procedure.”
According to the GATS, people who are smoking tobacco products the highest, are within the 45 and 64 years age bracket.
“Now they are not the ones using e-cigarettes and hookah the highest. The highest users of e- cigarettes and hookah are those between 15 or 24 years age bracket. So you can see that there’s a problem here. A different set of people are being targeted with these products, so that more people will get addicted to nicotine,” says Egbe, who was the lead investigator of the GATS.
She expresses concern at seeing such products being advertised to young people, many of whom are not smokers.
“You begin to worry what the motive is. [It] is the same pattern [of] how tobacco was made to be used by people, because even from the GATS, what we found was that the average age of initiation of tobacco use is 17.6 years.”
Protecting children
The majority of people who are smoking today, started doing so as teenagers, a phenomenon seen all over the world.
“If you ask a teenager who is smoking today they will tell you that they will quit when they want to quit. But by the time you want to quit, you’re hooked and you have to deal with the addiction. Many of them transition from smoking cigarettes to smoking other hard drugs.
“Cigarettes are known to be a gateway drug to many of the people who today are smoking hard drugs. They will tell you that they started smoking with cigarettes,” explains Egbe.
Both Egbe and Nyatsanza are of the view that the tobacco industry is targeting children.
“Historically up until today, the industry because it has to sell the product has to make money. It also targets children because that’s where the make or break of the industry really is. They target children as replacement smokers.
“It is about framing. Once the industry manages to frame the product as a lifestyle product; for example, think of e-cigarettes, the flavours [and their] colourfulness. If they manage to place it as a lifestyle product we have a problem with kids being attracted to that. Nicotine is very addictive,” says Nyatsanza.
Public health
Egbe further adds that cigarettes are still the highest earner for the industry which also produces e-cigarettes.
”It is still the product that gives them the highest profit, so they wouldn’t want to let go. For us in the public health community, it’s all about the health of the people because people are dying. The latest statistics in South Africa places the figure at 31000 people dying yearly from tobacco related diseases.”
Nyatsanza says the bill’s inclusion of a monitoring committee will ensure the monitoring of the industry.
“The good thing about the bill is that it actually introduces the monitoring committee. Our hope is that the committee will have different stakeholders involved to monitor what the industry is doing to ensure what kind of products are coming in; to ensure that our laws are still comprehensive enough and that the law is being implemented as best as it can be. When we get this bill passed, South Africa will be closer to its commitments under the framework.
“We will have to continuously try to tackle the problem because industry won’t stop and it won’t fold its hands and say this is the end. It will keep innovating. It will keep finding new loopholes,” says Nyatsanza, adding that tobacco use is estimated to cost the country R42 billion a year in treating illnesses related to tobacco.
Egbe adds that government is not overreaching when it comes to regulations contained in the bill.
“At the end of the day, we must put lives first. Lives before profits. Government is not overreaching at all,” says Egbe.
Nyatsanza adds that there will always be opposition to such bills.
“This is not only in South Africa, but globally. It is not surprising to see the industry push back. The interests of industry and public health will never be in alignment,” she says.
