Tobacco Products Control Amendment Bill: Department responses to public submissions

Meeting report

SOCIAL SERVICES SELECT COMMITTEE
21 August 2007
TOBACCO PRODUCTS CONTROL AMENDMENT BILL: DEPARTMENT RESPONSES TO PUBLIC SUBMISSIONS

Chairperson: Ms J Masilo (ANC)
 
Documents handed out:
Philip Morris SA Submission
Eagle’s Fare- Submission
Association for the Reduction of Tobacco Related Harm (ARTH) Submission
Swedish Match Submission
National Council Against Smoking
Tobacco Institute of South Africa
Mr D Hill
Federated Hospitality Association of South Africa
Mr G Vosloo
British American Tobacco SA
JT International South Africa

Audio recording of meeting

SUMMARY
The Department of Health summarised the issues made in public submissions on the Tobacco Products Control Amendment Bill, and indicated their response. It was noted that the Committee had also expressed some concerns whether there should be different age restrictions in relation to children being exposed to smoke. The current wording proscribed smoking in a vehicle in which children under twelve were being conveyed, yet proscribed smoking in front of those under 18 in the workplace. The Department indicated that if the Committee insisted upon the age of 18 being used throughout for consistency it would not oppose this, although there were medical reasons why the different ages had been proposed in the original Bill. The areas covered in the submissions had included smoking in private dwellings (which the Department did not believe should be legislated),  concerns about the requirement that manufacturers disclosure ingredients used, (which the Department indicated had been clarified by the fact that no trade secrets would be disclosed) and the application of the standards also to tobacco products intended for export. Suggestions were made that the permissible distance for smoking outside doors and windows should be included in the Bill, although the Department indicated it would prefer this to be in regulations. Concerns were also expressed that an exemption clause was inserted in the Bill, but the Department explained that this was intended to cater for the possible use of tobacco products for medicinal purposes. A submission that the designation of smoking areas would result in negative consequences on profits was not accepted by the Department as the research undertaken indicated the contrary. The Department stressed that the aim of the Bill was not to try to ban smoking altogether, as this could not be enforced, but to regulate smoking in public places. There were suggestions that smokeless tobacco not be included, but the Department indicated that this too had the potential for harm and therefore needed to be regulated. Once the responses had been obtained, the Chairperson gave representatives of the organisations who were present at the meeting the opportunity to make further submissions. National Council Against Smoking clarified that their call to ban smoking in private dwellings was limited to those private dwellings that also employed domestic workers and which were therefore also to be regarded as workplaces. Philip Morris called for distinction between the ingredients that had to be regulated and listed, but supported the Department's view that all tobacco products must be included in the Bill. British American Tobacco again queried why South Africa should seek to impose standards on other countries to whom it was exporting. Questions raised by Members related to the intentions of the protective measures of the Bill, the inclusion of smoked and smokeless tobacco products, the private dwelling / workplace arguments, and the export issues. Members would consider these submissions when discussing the Bill at a future meeting.

MINUTES
Tobacco Products Control Amendment Bill (the Bill): Department of Health (DOH) response to public submissions
Professor Ronnie Green-Thompson, Special Advisor to the Minister of Health, stated that he would be summarising issues raised in submissions on the Tobacco Products Control Amendment Bill. He raised the question of the age restrictions in the Bill, which were causing some difficulty for Members. The age of 12 years and younger had been chosen in relation to restriction of smoking in vehicles where such children were present, as this was the age where children’s organs were more vulnerable to damage from secondary inhalation of smoke. In relation to exposure of children to smoke in the workplace, an age limit of 18 years was set, as children below this age were not legally in a position to purchase cigarettes, and allowing them access to areas where they were exposed to smoking would defeat the purpose of the age restrictions on smoking under 18. The Department would consider setting all age restrictions at 18 years if the Committee so wished.

At this point Mr B Tolo (ANC) suggested that the Department should rather take the Committee through the submissions one by one, and comment on each submission.

The Chairperson noted that the Department had only received all submissions one day before the meeting..

Mr Sello Ramasala, Senior Legal Officer, DOH, responded that he was not in a position to deal with the submissions in detail individually due to having only received them on the morning of this meeting.

Mr Tolo suggested that the meeting should continue but that it should not attempt to finalise the Bill, and perhaps it would be necessary to schedule another meeting to discuss all submissions thoroughly. 

Ms F Mazibuko (ANC) suggested that the meeting be adjourned for a short while to give the Department time to study the submissions.

Ms N Madlala-Magubane (ANC) noted that the Department had presented some of the submissions to the NA Committee.

Mr Ramasala (DOH) requested that the Committee allow for a short break so that the Department could decide how best to deal with the matter.

After a break, Prof Green Thompson stated that the Department had now studied all submissions and there was general support for the Bill, but certain issues were being raised. A number of common causes of concern could be identified.

Mr M Sulliman (ANC) felt it was unfair for the Department to be expected to comment at the meeting on all submissions studied during this short break. He proposed that the Department should have further time to deliberate and then send documented responses to the Committee.

Ms F Mazibuko (ANC) suggested that the common concerns identified should be mentioned and the response of the Department heard.

The Chairperson noted that the Committee had to attend to the submissions, which had been sent through individually, on an individual basis. 

Mr Ramasala then summarised the submissions as follows:

Submission by Philip Morris
This submission expressed concern about the definition of ingredient and the definition of tobacco product. The Department shared their concerns over the wording.

Submission by National Council against Smoking (NCAS)
The NCAS had proposed that the general permissible distance from public doors/openings within which smoking should be prohibited must be 3 metres, with this being raised to 10 metres in some instances.

Mr Ramasala said that the Department still felt that this distance should be prescribed in regulations, and not inserted into the Bill itself.

NCAS had further suggested that there should be a total ban of smoking in vehicles.

Mr Ramasala said that the Department still believed the restriction on smoking in vehicles carrying children younger than 12 years of age was reasonable. However if the Committee felt that this should rise to 18 years, then the Department would agreed to a change.

Mr Tolo said that there seemed to be some contradiction within the Department as to whether the Department had been persuaded that the age restrictions of 18 should be applied consistently, or whether the Department was still suggesting that the age of 12 years was appropriate in relation to smoking in vehicles.

Mr Ramasala responded that Prof Green-Thompson had explained the vulnerabilities of a 12 year old, but if the Committee was firmly of the view that the age of 18 should be used, then the Department would agree to this. There was not in fact any contradiction.

Mr Tolo said he simply wished to have clarity whether the age restrictions would be synchronised or not.

Prof Green-Thompson said that the Department would be happy to use 18 years for everything if the Members felt that this would bring about consistency.

Mr M Thetjeng (DA) commented that the extent of harm that tobacco could cause to a child at paediatric stage was different to an a18 year old. He said that age in this Bill was determined in the specific context of harm being caused.

Mr Ramasala said that another submission made by NCAS was that smoking in private dwellings should be banned. The Department did not agree with the total ban on smoking in private dwellings, as the Bill did not aim to infringe on people’s right to enjoy their own pursuits in their own private property. 

Submission by Tobacco Institute of South Africa (TISA)
Mr Ramasala said that in their submission, TISA acknowledged that their previous comments and concerns had been addressed by certain amendments to the Bill.

It was concerned that the Bill was attempting to impose South African standards on foreign countries through clauses relating to exports.

Mr Ramasala said that the Department had taken the view that if a product was not fit for consumption in this country then it would not be correct for South Africa to dump it on other countries. This was a responsibility issue. He added that medicines manufactured for export had first to meet the standards required of this country, and a similar principle was being applied.

 TISA was not pleased about the insertion of an exemption clause in the Bill. The Department said that this was inserted to cater for the situation where products might be manufactured in future for medicinal purposes.

Submission by Federated Hospitality Association of South Africa (FEDHASA)
Mr Ramasala indicated that FEDHASA supported the Bill but raised an issue about vending machines. Mr Ramasala explained that as the Bill had essentially been split, this issue would be dealt with in the other portion of the Bill, and it was not necessary to address it in this Bill.

Submission by Eagles’ Fare Restaurant
The restaurant had submitted that the provisions in regard to designated smoking areas in restaurants would have a negative effect on profits. The Department had already conducted a survey in 2003 on the economic effect of decreasing smoking in restaurants. The owners of the restaurants said it did not have any effect at that time. The Department did not think that the situation would have changed.

Submission by Gerhard Vosloo
Mr Vosloo had submitted that smoking be banned in public places. The Department was not in support of this, as it believed that the nature of the legislation was rather to regulate smoking, and not to attempt to ban it altogether.

Submission by Swedish Match
Swedish Match had proposed that signs and billboards about tobacco control should be made bigger and be more visible. The Department was in support of this point of view.

Submission by JT International South Africa Ltd
This submission stated that disclosing all ingredients used in tobacco products would be divulging trade secrets, which might compromise the position for manufacturers. The Department stated that this in fact would not happen. The information to be requested by the Minister would be specific in its form and scope and would not in any way compromise the integrity of the company, nor its position in relation to its competitors. Mr Ramasala stressed that protection of commercial information on trade secrets had already been provided for and that the concerns of manufacturers on this issue were unfounded.

Submission by Mr D Hill
The Department stated that Mr Hill had made a submission similar to that of Swedish Match, relating to the  size of billboards, and, as already indicated, the Department was in agreement with this submission. 

A further suggestion was that the definition of public places be broadened to include places like clubs. The Department was of the view that the definitions were already broad enough to include clubs, so that this issue was already taken care of.

Submission by Association for the Reduction of Tobacco Related Harm (ARTH)
The ARTH had made a submission that smokeless tobacco not be included in the Bill. Prof Green Thompson explained that the Department were of the view that the Bill should include smokeless tobacco, as although it might be less harmful, it was certainly not harmless, and therefore also required regulation.

Submission by British American Tobacco (BAT)
BAT had submitted that the exemption clause was very broad. Mr Ramasala said that this was indeed so, but that the Department believed that it was necessary to be framed in broad terms to allow the Minister to make decisions.

BAT had also submitted, like TISA, that the Department should not attempt to make South African standards applicable to products destined for export to other countries. The Department had already responded on this point.

BAT further submitted that the Department did not have the expertise to take a decision on the ignition propensity, and should rather leave that to the South African Bureau of Standards (SABS). On this point the Department responded that if it deemed it necessary to consult with the SABS then there was nothing to stop it from doing so.

BAT also suggested that the integrity of a company could be compromised if certain information regarding the ingredients had to be disclosed and suggested that the disclosure provisions needed to be amended. Mr Ramasala noted that the Promotion of Access to Information Act clearly set out certain provisions, and detailed the protective measures that existed for companies.

Opportunity for Oral Submissions
The Chairperson then allowed the people representing the organisations that had made submissions to comment further on their submissions..

Dr Yusuf Saloojee, Executive Director; NCAS, clarified that NCAS had not been suggesting that there should be a total ban on all smoking in private homes under any circumstances. A private home where a domestic worker was employed became a workplace for the domestic worker. The submission by NCAS was aiming to protect the domestic worker at her / his workplace.

Mr Neetesh Ramjee, Executive: Corporate Affairs, Philip Morris, said that when detailing ingredients in tobacco products, there should be a distinction between ingredients over which the manufacturers had control, and those that it could not control. He drew the Committee's attention to the European Union (EU) directive dealing with pharmaceutical products. He added that Philip Morris was in support of the Department's view that all tobacco products should fall in the ambit of the Bill.

A representative of BAT said that the submission in relation to the imposition of standards on products for export was intended as a word of caution to the Department. In relation to ignition propensity of cigarettes, he noted that some countries had no standards and this country would therefore be imposing its standards, which could have an adverse effect on those other countries. He questioned why the Department would need certain information to be disclosed.

Discussion
Mr Tolo asked that the Department should provide written responses to the submissions to the Committee as a reminder for the discussions of Members.

Mr Thetjeng commented that nicotine was a legalised drug that needed to be controlled. He asked whether the aim of the legislation was mainly to protect non-smokers, or whether the protection was intended to extend also to smokers. He agreed that a private home could be classed also as a workplace if it employed a domestic worker.

Ms Mazibuko asked for clarity in response to the agreements that the Department had mentioned on the concerns raised by TISA, and whether the proposals for amendments emanated from discussions at Portfolio Committee level. She commented that all tobacco products must be included, whether smoked or not.

Mr Ramasala responded by saying that when the Portfolio Committee had considered the Bill there was a proposal that the definition of tobacco product be amended, but this was not accepted. Then there was a proposal about the exemptions. In fact it was not TISA's proposals that were accepted wholesale, but the Department had agreed to certain matters.

In response to the NCAS submissions on private dwellings that were also workplaces, Mr Ramasala said that the Department could only regulate private dwellings to a certain extent, both from the practical point of view and in principle. The Department understood the concerns, but had not considered that it was able effectively to implement regulations in these areas.

In response to the Phillip Morris submission on ingredients, Mr Ramasala noted that the Department was dealing with the matter on the basis of the end product, and was therefore concerned about any contamination or introduction of prohibited ingredients.

In relation to the comments on exports, Mr Ramasala reiterated that the Department was of the view that those standards that applied to safety issues internally should equally apply to exports.

He concluded that the Department administered around 30 pieces of legislation, and commented upon the regulations that would be needed under those Acts.

Ms Mazibuko said that regulations were published in the Government Gazette, and therefore Mr Ramasala should not insinuate that the NCOP would not be able to cope with the matter.

Mr Ramasala (DOH) apologised, stating that it was certainly not his intention to insinuate this. The Department would be tabling regulations.

A representative of the Department of Health commented that the South African Demographic Health Survey had conducted a survey on prevalence of smoking among men, women and children. Since 1999 there had been an overall reduction in smoking patterns. The objective of the Bill was to protect non-smokers from harmful effects of smoke, as well as to reduce the incidence of smoking among smokers. The division between the Section 75 and 76 portions of the Bill to some extent reflected the target, as the Section 75 portion was dealing with issues around promotion of health and measures aimed at reducing harm, whereas the Section 76 portions were concerned with commercial issues.

Mr Tolo agreed that the banning of smoking in private dwellings would go too far, as would any suggestion that smoking would not be allowed in any place where children might be present. The aim of the Bill was to decrease the harmful effects and incidence of smoking. 

Ms Mazibuko differed from Mr Tolo on the issue of private dwellings,  believing that people should be sensitised more to not simply lighting up a cigarette in front of children and that this could be addressed in legislation.

Mr Thetjeng commented that any product produced in South Africa will have to be approved by SABS, but he did not see why there was also such emphasis on export goods. He whether the Department could do a comparative study or inform the Committee what research had been done, on specific issues.

The Chairperson asked if snus was classified as food or tobacco.

Prof Green-Thompson commented that the Department could not legislate for every singe situation and there would be some instances, such as private dwellings, that would not be covered. A domestic worker being exposed to smoke against her will was in fact just as vulnerable as a child being exposed, and there was a danger that she could be dismissed if she raised objections. On the issue of snus, he noted that in the Portfolio Committee public hearings the point was made that any tobacco product should be covered by the Bill, whether burnt, sniffed or chewed. Snus was more addictive than smoking-tobacco and there was a higher incidence of pancreatic cancer in snus users. In conclusion, Prof Green-Thompson said that all tobacco products must conform to the standards of the country, whether or not they would be exported. He said that credibility of trade was very important.

The Chairperson thanked the Department and said the Members would need to discuss the submissions. 

The meeting was adjourned.