Tobacco Products Control Amendment Bill: Department of Health briefing

Meeting report

SOCIAL SERVICES SELECT COMMITTEE
31 July 2007
TOBACCO PRODUCTS CONTROL AMENDMENT BILL: DEPARTMENT OF HEALTH BRIEFING

Chairperson: Ms J Masilo (ANC, North West)

Documents Handed Out:
Tobacco Products Control Amendment Bill [B24B-2006]

Audio recording of meeting

SUMMARY
The Department of Health briefed the Committee on the Purpose of the Tobacco Products Control Amendment Bill. The amendments would ensure South Africa’s compliance to the World Health Organization’s Framework Convention on Tobacco Control (FCTC), ensure that young people do not start smoking at an early age, prevent severe harm from smoking and ensure that people quit smoking too. On advice of the Joint Tagging Mechanism of parliament, the Bill had been divided into both section 75 and section 76 portions. The Section 75 legislation currently dealt with environmental issues such as further regulations on smoking in public areas and near entrances to public places. The Section 76 legislation covered advertising, sales and vending machines regulations. A summary of the clauses was given.

Members wanted further clarity on the definition of smoking, and the distinction between smoking in the normal sense and tobacco product use was explained. Members raised concerns regarding the different age restrictions in the various sections of the Bill, and the Department was asked to undertake further research and make a further presentation on these issues. Further questions related to the penalties proposed in the Bill, the lack of specific mention of schools in the Bill, the liability of persons leasing property for compliance, supply of cigarettes to inmates at prisons and hospitals, the definition of “public conveyance” and the concern that the exemptions in the Bill were too generic. The Bill could not be finalized at this meeting. Further submissions were still awaited and it was suggested that a decision regarding the necessity to hold public hearings stand over until the submissions were assessed.

MINUTES
Tobacco Products Control Amendment Bill: Briefing by the Department of Health (DOH)
Mr Bernard Asia, Acting Cluster Manager for Health Promotions, Department of Health, explained the rationale for the Tobacco Products Control Amendment Bill (the Bill). South Africa had a Tobacco Control Amendment Act 93 of 1993, but this legislation contained loopholes that made enforcement difficult. Gaps in the legislation also led to non-compliance. The amendments proposed in the Bill would correct the mistakes in the Act and bring South African legislation in line with the World Health Organization (WHO) Framework for Convention on Tobacco Control (FCTC). South Africa was a signatory to the this treaty and thus had certain obligations under it.

The Bill aimed to ensure that fewer young people would start smoking, protect people from the effects of tobacco smoke, assist smokers to stop smoking and reduce the health risks of those who continued to smoke.
 
The Tobacco Products Control Amendment Bill was being put forward as both a Section 75 and Section 76 Bill. The Section 75 portion dealt with environmental issues regarded as national competency, while the Section 76 portion dealt with trade aspects that were regarded as a national joint competency between national and provincial governments.

Mr Sello Ramasala, Head of Legal Services, Department of Health, explained that the principal Act would comprise of the original Act 93 of 1993 and amendments of 1999. Amendments made to any of the definitions were underlined in the Bill. Clause 2 of the Bill replaced Section 2 of the Act and was the main focus. This clause imposed a duty on the owner of property to ensure that smoking did not take place in areas where it is prohibited, gave the Minister power to prohibit smoking in certain public places (for example stadiums). imposed a duty on the owner of premises to ensure that signs were posted to indicate prohibition of smoking, and set out that employees did not have to sign indemnity forms, and that no person under the age of 18 was allowed in areas where there was smoking, such as designated sections of restaurants.

Clause 3 set out the standards for manufacturing and export of tobacco products, which the Minister of Health had the power to impose. Clause 4 sought to amend Section 6 of the principal Act, dealing with signs and standards that must be complied with, information to be submitted in respect of contents of tobacco products and marketing by manufacturers. Clause 5, inserting a new Section 6A, allowed for exemption of tobacco products from a provision of this Act if this was in the public interest. This clause was introduced to cater for arguments that it may not be possible to ban outside products that could be used for medicinal purposes. Section 7, dealing with offences and penalties, was substituted with a new Section, and the preamble to the Act was also substituted.

Discussion
Mr M Sulliman (ANC, Northern Cape) asked there was an age difference between those children referred to in clause 2(1)(a)(iii) and those referred to in clause 2(6)(1)(a). He further asked who would be held liable on rented premises if smoking was prohibited but that rule was contravened.

Mr Sello Ramasala, Head: Legal Services, DOH, responded that persons under the age of 12 years were more vulnerable to the effects of smoking and added that if there was evidence contrary to this then that age restriction could be changed to 18 years. He said that liability in instances where premises were rented rested upon the lessee as the Act referred to “owners or persons in control.” He added that the landlord could not be held liable because he might not know what was happening at the premises.

Ms F Mazibuko (ANC, Gauteng) was concerned that there was no mention of schools in the Bill as she believed that most people started smoking at school. She requested that this be considered. She asked whether the Department of Education and the Department of Social Development had been consulted, because this had not been stated in the Bill.

Mr B Tolo (ANC, Mpumalanga) sought clarity on the definition of smoking. He said that in some instances some tobacco products were not smoked, and that, for example, in the rural areas, older people would use snuff under their tongues. He enquired if this was regarded as “smoking” in terms of the Bill.

Mr S Ramasala (DOH) responded that the provisions of the Act provided for both smoking and tobacco products. He said that the igniting of products was the most important definition of smoking.

Mr Tolo gathered from the Bill that smoking in public places was prohibited, but he was concerned that the Bill, under clause 2(5), contradicted itself by stating that an employee may object.

Mr Ramasala noted that although smoking in public places was banned, the Bill allowed the Minister discretion to make exemptions for smoking to be allowed in certain areas.
 
Mr Tolo then requested that the committee be enlightened of what the principal Act 93 of 1993 said about clause 4.

Mr Ramasala explained that the principal Act allowed the Minister to make regulations.

Mr Tolo asked if it was not possible to lower the fines payable for contravention of the smoking prohibition rules as he believed that the people who were the most prevalent smokers were often from very poor backgrounds and would not be able to afford to pay the fines, and would then result in them being sent to jail. He asked if the Department really wanted to criminalise matters to the extent of taking those failing to settle fines to jail.

Mr Ramasala highlighted that the sections regarding fines were worded as “not exceeding R500”, implying that presiding officer could decide an amount that was less than this amount.

Mr Sulliman asked if would not be possible to add a maximum prison sentence that a person could receive if he or she failed to pay the fine.

Mr S Ramasala (ANC) responded that the Department did not make provision for this because people would not be jailed if they could not pay this amount.

Mr Sulliman said that there were many poor communities in South Africa who would not be able to afford a R50 fine. He believed that the presiding officer could sentence an offender to jail if he failed to pay that was why he was making a proposal for a jail time limit.

Mr Ramasala responded by saying that the presiding officer would have the discretion to look at all evidence given and then make a decision.

Mr M Thetjeng (DA, Limpopo) asked what the term “public conveyance” included, and whether a donkey-cart formed part of this inclusion.

Mr Thetjeng requested an example to illustrate the situation mentioned in clause 2(3), relating to prescribed outdoor places.

Mr Thetjeng asked whether clause 3(3) was about doing business with other countries and meeting their standards.

Mr Ramasala noted that the idea behind exports was that if products were hazardous for South Africans, there would be no evidence that they were good for another nation. He said that if manufacturers were not meeting South African standards then they should not be allowed to send their products elsewhere. He gave an example that medicine that was not fit for consumption in South Africa could not be sent elsewhere.

Mr Thetjeng wondered if the words in clause 7 - “is extremely injurious to health” - only were referring to cigarettes. He said that the use of snuff affected the user’s health although not a bystander, since there was no smoke. He then asked where using snuff fitted in to the Bill.

The Chairperson asked whether the department had considered the badge used in other countries.

Ms H Lamoela (DA, Western Cape) said that the age restriction for the use of vending machines was 16 years,  although 12 years was used in clause 2(1) (a) (iii) and 18 years in the workplace under clause 2(5). She requested that the Committee receive clarity in this regard.

Mr Ramasala noted that the 16 year old determination formed part of the section 76 Bill and not this Amendment Bill.

Ms J Masilo (ANC) commented that 12 years of age would encompass primary scholars but not those in early childcare.

Mr S Ramasala responded to these and earlier questions on schools by noting that schools fell within the broader meaning of public places. He said that there were however two major efforts running in schools, namely the Health Promotion Project and the Healthy Lifestyle Project. The Departments of Education and Social Development were consulted in the first round of consultations about the Bill. Lastly, he said that patches were not dealt with because patches were regulated in the Medicines Substance Control Act.

Ms Lamoela asked whether or not a study had been conducted to evaluate the effects of a 12year old in the vehicle and the 18year old in the workplace.

Mr Tolo said that 12 years of age seemed like an arbitrary number. He requested that the Department clarify whether this was a scientific figure.

Ms Mazibuko said that the Committee was proposing that there be consistency in legislation with respect to the age restrictions and fines. On the issue of schools she agreed that if schools were included under the Section 76 portion, that was acceptable, but that the public should not have to assume that “public places” must also include “schools”, and hoped that there would be no problems in that health inspectors would not be permitted to enter schools.

Ms Nthari Matsau, Deputy Director General, highlighted that 12 years was not a thumb sucked figure. It was used because physiologically and psychologically, at around 12years, the pediatric stage started to disappear. She said that the difference between a 12 year old and a 13 year old was very subtle but the differences were noticeable. The Department would also like that standardization and consistency but must take certain differences into account. She noted that it was quite feasible that an 18 year old could work in a place where smoking could be regulated.

Ms Lamoela asked whether a vulnerability study was done to prove the effects of smoking on 12 year olds.

Ms Matsau said that the Medical Research Council (MRC) had done a study, but the age limit was also based on the FDA figures in the United States. She said that this age restriction of 12 years could be reviewed up to 16 years of age if the Committee wished it.

Mr M Thetjeng (DA) asked for an explanation of the words included under the definitions dealing with transportation.

Mr Ramasala said that the word “includes” meant there were other instances in addition to those listed. He noted that under clause 1(h) the words “including but not limited to” were used for the definition of tobacco products, which was another way of expressing the word “including.”  He said that the Department was willing to add the words “but not limited to.”

Mr Thetjeng returned to the question of fines, and said that legislation should provide guidance for the presiding officer when imposing fines. He said that there were no options in terms of fines, and he would prefer that alternative forms of sentencing should be included, rather than leaving the decision to the presiding officer.

Mr Tolo added that in his view the Department was contradicting itself because they were prescribing amounts in terms of the fines, but did not want to prescribe other matters, preferring to leave this to the presiding officer. He suggested that the Committee find out from the State Law Advisors if this was good practice.

Mr Ramasala responded that there were many ways of providing for punishment. He said that if the Committee really wanted stipulations about jail time limits, then the Department could consider this, but there would be certain offences where relevant departments would be aware of the severity of the offence.

Ms Matsau added that to some extent the Department needed to prescribe fines because in some instances the fines imposed were so small that they were regarded as laughable. She said that perhaps stiffer fines should be imposed for the industry, based on what was seen over time and research.

Mr Thetjeng stated that the exemptions as referred to in the words “provided that it is the public interest” were not clear as this was too generic. He asked whether the exemptions were supposed to be under the Section 76 portion, because public places were in the control of a public authority.

Mr Ramasala noted that if the Committee wanted more guidelines in assisting the Minister then the Department would be happy to do so.

Ms Matsau added that this was an open area where the Department could guide the Minister. She said that the main ingredients of tobacco were nicotine and tar which were not active ingredients in medicine, but stabilizers. It was in instances like these where space should be allowed for the minister to exempt.

Mr Thetjeng asked if clause 2 only regulated smoking and no other tobacco products and, if so, where other tobacco products were being regulated.

Mr Ramasala confirmed that Clause 2 only dealt with smoking and that clause 3 dealt with tobacco products, not necessarily those that were “smoked” in the usual sense.

Ms J Vilakazi (IFP, Kwazulu Natal) commented that prisoners in jail smoked and that if cigarettes were eliminated they must be substituted with something else. She also commented that psychiatric patients often smoked in order to calm themselves down and this should be considered somewhere in the Bill.

Mr Ramasala said that smoking by prisoners in public places was a result of non-compliance by the institutions, and that the Department could not be prohibited from regulating because of this non-compliance. The broader interest must be recognised.

Ms Matsau added that cigarettes were no longer allowed to psychiatric patients because there were no benefits from it and it was merely a social habit.

The Chairperson suggested that the Department of Health do further research on the age restriction issues and then give feedback to the Committee. She further mentioned that the Bill was not going to be finalised at the meeting because the National Council Against Smoking had made submissions regarding the Bill. The Chairperson said that there would be no public hearings for the Bill.

Mr Thetjeng suggested that if submissions were accepted, then there should be public hearings because he believed that spoken words often conveyed the message better.

Mr Tolo requested that the Committee not stop those who wished to do so from bringing in their input. He suggested that any input be taken and scrutinised with the Department and then a decision could be taken as to whether there were compelling arguments that justified a public hearing.

The Chairperson agreed with the suggestions about the public hearings and requested that members of the Committee think about where the public hearings could be held, as not everyone could afford to fly down to Cape Town.

The meeting was adjourned.