Tobacco Products Control Amendment Bill [B117D-98]: hearings

Meeting report

HEALTH PORTFOLIO COMMITTEE
19 October 1998
TOBACCO PRODUCTS CONTROL AMENDMENT BILL [B117D-98]: HEARINGS

Submissions handed out
Afrikaansehandelsinstituut
Airport Advertising
Alexander Sinton High School
Anchor Outdoor Displays
Applied Fiscal Research Centre (AFReC)
Associated Printing
Association of Marketers
Banner, I.S.
British American Tobacco (South Africa)
Cape Town No Tobacco Forum
Cancer Association of South Africa
CINEmark
Clarion Printed Products
Clothing Bargaining Council Health Care Fund
Cooperative Tobacco Exchange
Corporation for Economic Research
Democratic Nursing Organisation of South Africa (DENOSA)
Durban Turf Club
Erasmus, Gerhard (Faculty of Law, University of Stellenbosh)
Federated Hospitality Association of South Africa (FEDHASA)
Food and Allied Workers Union (FAWU)
Free Market Foundation
Freedom of Commercial Speech Trust
Gretton, Keith (expert on environmental tobacco smoke)
Heart Foundation
High, S. Hugh (Depts. of Business Science & Economics, UCT)
Independent Newspapers Cape
International Hotel & Restaurant Association
Leach, Daniel (Dept. of Business Economics, University of Witwatersrand)
Lowveld Golden Leaf
National Council Against Smoking
National Health Committee: ANC
National Progressive Primary Health Care Network (NPPHCN)
Marks, Amy Seidel (Graduate School of Business, UCT)
Media Co-ordination
Medical Research Council
Mosime, S.M. (University of the North West)
Music Industry Development Initiative (MIDI)
Potgietersrus Tobacco Corporation
Print Media Association of South Africa
Reference Group for Health Promoting Schools in the W. Cape
Robertsons Food
Rothmans International
Swart, Dehran
Tobacco Institute of Southern Africa
Tobacco RSA
Tobacco Vending Machine Association
Ucko, Peter (Independent Councillor)
Woest, Dennis
Western Cape Department of Health
Worldwide Brands Incorporated

SUMMARY
Presentations were heard on the Tobacco Products Control Amendment though the evening session was not monitored. Most questions asked of the presenters were for clarification of various points made in their submissions.

MINUTES
Presentation by Dr Yusuf Saloojee from the National Council Against Smoking
Paper: Sustaining a successful policy
Summary: The council welcomes the Tobacco Products Control Amendment as sound public health policy. This council maintains that globally there are only two causes of preventable deaths that are increasing substantially – HIV and tobacco. Council stated that WHO estimates that by 2025, 500 million people worldwide will die of tobacco related disease. The SA Medical Journal as far back as 1963 had pointed to the need for legislation. Council feels there should be control of advertising, promotion and free distribution.
to free young people from pressure to smoke,
to reduce tobacco consumption in the population
to protect the health and rights of non- smokers.

A speaker on behalf of Dr Grammer: Principal Medical Officer Clothing Bargaining Council Health Care Fund.
Paper: Smoke and Lies
This submission relates to ETS (environment tobacco smoke), in other words: passive smoking. ETC is considered by the Tobacco Industry to be harmless. Chemicals in tobacco smoke comprise a lethal cocktail of 4 700 noxious chemicals, including 54 cancer-causing chemicals. Therefore long term exposure to ETS increases non-smoker’s risk of lung cancer or heart disease or asthma as well as the risk to babies and children of inhalant related problems.

Presentation by Prof. Iraj Abedian : Director of Afrec Centre – UCT
Proposed Bill is compatible with the centre's own findings.
Paper: Economics of Tobacco Control Project in South Africa
This submission involved UCT's project on the economics of tobacco control in SA (ETCSA) and shows that:
tobacco control measures are either insignificant on in fact positive in relation to job creation and economic growth,
no international evidence or theoretical support that tobacco control measures have the potential to wipe out the industry in the short term, in an economic analysis of tobacco control, it is vital that cost of smoking to society is brought into the equation.

Global economic and epidemiological modeling of tobacco suggest that the industry is here to stay and make handsome profits. The only effect of banning advertising or heavily taxing cigarettes would be to safeguard children, the youth and other vulnerable groups.

Presentation by Mr Roy Wilson: Managing Director & Mr John Lloyd: Marketing and Sales Director – for Independent Newspaper Cape
Mr Lloyd pointed out that INC operates on the principle of editorial independence, and that a proposal that further restricts the rights of a group of advertisers to promote their products is of great concern to INC. Independence Newspaper Holdings stands to lose R 14,5 million in national advertising revenue and could result in retrenchment of staff. Therefore INC urges caution in the unilateral and ill-considered restriction of rights of commercial enterprises to promote and sell their wares. If 95% of newspaper readers are over the age of 18, placing a total ban on all tobacco advertising in newspapers does not achieve the objective of the Minister to protect the rights of children

Presentation by Dr K Cloete: Reference Group for Health Promotion in Schools in Western Cape
This group confirmed support for the Bill. The group works with 60 schools in the Western Cape Region in conjunction with the Dept. of Health and the Dept. of Education. The aim of the group is to promote a smoke-free policy at schools. The group feels that smoking and smoker-related problems interfere with learning problems, that schools must stress the negative factors about smoking and sporting advertisements should be discontinued as they promote smoking amongst the youth.

Presentation by Mr Dehram Swart: private submission
He supports the Bill. This submission focused on the advertising industry and its long-held position that tobacco advertising does not influence young people’s decisions about smoking. Mr Swart maintains that sport sponsorship has become an easy way by which tobacco companies can circumvent the advertising ban and that studies have indicated that sponsorships are noticed and remembered by people, especially children. Such sponsorship undermines health consequences by linking smoking with physical fitness and excellence. Society’s values and principles dictate that tobacco is a hazardous product and its promotion needs to be controlled.

Presentation by Dr A Seidel Marks, Senior Lecturer, Marketing Graduate School of Business, UCT
Dr Marks supports the Bill. She contends that the Tobacco Product Control Amendment Bill is needed to curb the uptake of smoking and tobacco usage in SA, particularly by children and youth.

A major reason for human acceptance of tobacco and passivity about its deadliness is the pervasive and powerful impact of tobacco marketing that affects children and youth. Tobacco advertising is intended to create new users. Sponsorship by tobacco companies is an effective method of advertising to children and youth. Regulations on tobacco marketing are needed in order to stop the industry from distorting and misrepresenting the facts about tobacco. Any marketing professional knows that freedom of speech for advertising in the media only exists for those who have the economic clout to but and use it. That is not true freedom of speech.

Presentation by Mr M Gxanyana – Gen. Sec. Of the Food and Allied Workers Union
He does not support the Bill in full , but supports the development of a health national lifestyle and offers comments and alternatives in its FAWU booklet on Tobacco Bill.

FAWU maintains that :
a ban on advertising affects a range of operations in the industry, would lead to a net employment loss of approximately 8000 people
a ban on smoking in public places affects the restaurant trade, affects the tourist trade
a ban on sponsorships limits development of athletes and scholars (e.g. from disadvantaged backgrounds) and will result in the loss of revenue (e.g. brings in millions annually to the economy)

International evidence suggest the possibility of smuggling. No attention has been given by the Dept. of Health to legislation dealing with discriminatory trade practices in covert forms – e.g. non tariff barriers to trade.

FAWU calls for an approach to the issue in a sustainable fashion which the Bill does not do.

Presentation by Mr Peter Cumberlege – Acting Executive Director of FEDHASA
He does not support the Bill in toto. Fedhasa neither argues or challenges the health aspects of the Bill but holds that smokers are an integral and significant part of the SA economy especially in terms of the Tourism and Hospitality Industry.

Fedhasa holds that as it is worldwide the hospitality and tourism industry in SA is recognised as a growth industry.

The definition of a "public place" will include, amongst others, Hotels, B & Bs , Guest house, Game Lodges, Restaurants, Clubs, Taverns, Shebeens, Cigar Bars, conference centres, Gaming and Gambling establishments, therefore Fedhasa is of the opinion that the committee must evaluate and consider the financial impact of a total ban on smoking, as they are confident that it was not the Minister's intention to place an additional burden nor restriction on an industry earmarked by the government and the private sector as offering significant opportunities to new entrants (SMMEs in particular).

Presentation by Edward Shilala – CEO of Tobacco Institute
Mr Shilala expressed the concern of TISA that there had been very little consultation and that the issue of consultation is as contentious as the content of the Bill itself. He said the Bill was badly drafted and totally unreasonable and would lead to "harsh, absurd and unintended consequences"

TISA supports the motivation of protecting children from smoking but the Bill as a whole could be far less restrictive. TISA proposed that:
banning adverts that associate smoking with social success, business advancement and sporting prowess
restricting the size of tobacco advertisement in the newspaper (to 200 column cm) and magazines (to a single page);
banning advertisements in publications that have an adult readership of less that 75%;
restricting outdoor advertising to under 36m
and keeping it more than 400 m away from schools;
banning adverts outside shops;
raising to 18 the age at which teenagers can be sold cigarettes

Rory Wilson, managing director of Independent Newspaper, said that banning advertisements set a dangerous precedent that denied a group of advertisers the rights to advertise their products.

Presentation by Tobacco Vending Machine Association
They support the government in its effort to curb sales to children and will seek to implement any reasonable measures aimed at reaching this goal. The vending machine industry is comparatively small, 3000 cigarette vending machines in the country as compared to 8000 in Australia, 800 000 in Germany, 150 000 in the UK and 100 000 in USA. Most vending machines are located on licensed premises and the price of cigarettes from a vending machine is substantially higher, which means that in SA, children do not as a rule buy or attempt to buy cigarettes form vending machines. If the Bill is passed at least 200 jobs will be lost. There would in addition not be any provision reimbursing vending machine operators for the fair market value of their businesses, including the cost of redundant machines and other plant and equipment, and compensation for lost profits, unexpired contracts, lost goodwill and severance payments to retrenched employees.

Afternoon session:
South African Medical Association
Mr Volshenck gave a presentation on the health effects of smoking.

Afrikaansehandelsinstituut
Mr de Villers claimed to represent a business perspective expressly not on behalf of any industry. He called attention to costs associated with implementing the Bill, namely millions that would be lost in advertising. He also reckoned that the Bill would contribute to an existing four-year job loss trend. Additional points were that:
- as it will be virtually unenforceable, there will be a greater propensity to disrespect the law,
- as it is harmful to impose criminal law on society, the Bill is defective as a criminal provision, and
- that "implementation of this Bill as it is a pipe dream".

ANC members asked two questions regarding: (1) the implications for the economy of job losses due to chronic disorders and morbidity stimulated by smoking in the workplace, and (2) rights of workers to be free from health hazards at work.
He responded that he is not against such legislation but that a balanced, appropriate approach is in order.

Potgieterusse Tabakkooperasie
Mr Wolhuter raised issues about the constitutionality of the Bill. The similarity of the Canadian and South African constitutions was mentioned, and the case of RJR Macdonald and Imperial Tobacco versus Canada was cited. The Canadian Supreme Court's verdict declared that the state's Tobacco Control Bill was unconstitutional.

While acknowledging the importance of the Bill for public health, he focused on two points:
- the Bill may not be a reasonable or proportionate response to government objectives; the government has not provided ample justification for the measures proposed.
- The Bill may constitute an unjustifiable infringement of the freedom of expression considering the guidelines around trademarks and the imposition of unattributed health warnings. The right of expression, furthermore, grants individuals the right to say nothing or the right to say certain things.

The Chair of the proceedings proposed that these concerns could be addressed in the regulations.
He responded that regulations would not remedy fundamental problems.

Mr Woest
Mr Woest testified to the impact of heavy, long-term cigarette smoking on his health. His smoking habit resulted in the development of cancer of the larynx and had resulted in a larynectomy (loss of his voice box).

An ANC member asked him about his perspective on the financial implications of smoking-related disorders.
He responded that his health maintenance costs are R1,200 to 1,500 per month. For people who do not have medical aid, especially people in black communities, their health is likely to deteriorate and many people will lose their jobs. In another vein, the issue of rights for individuals other than corporations is salient because larynectomies are losing their freedom of speech as they no longer have the ability to speak.

Ucko, Peter (Independent Councillor)
Mr Ucko urged for more stringent law. He advocated legislating more controls, including a R5,000 penalty for infringement increased from the current R200 fine. He also recommended that police be better supported and empowered to enforce the law. In addition, average citizens need to have more room to enforce the law for their benefit in the absence of police officers. He considered citizen's arrest an appropriate mechanism.

Department of Health
Dr Blecher represented the Department in addressing intergenerational health impacts, and listed related illnesses and statistics. Main points included the following:
- Passive smoking is a public health problem which incurs impacts of a collective nature,
- Young children's tremendous awareness of advertising must not be ignored, and
- Measures against advertising alone will only lead to an increase in indirect advertising. Thus, prohibition of sponsorship and other measures are necessary.

Castle Premier Soccer League
Mr Philips stated that his testimony was in the interest of soccer, not the tobacco industry. His main concern was that a ban on sponsorship, as propagated in the Bill (in the clause on "marketing of an event"), affects soccer infrastructure and the sport's general ability to be internationally competitive. He claimed that sport enthusiasts identify with the values of the players and not the sponsors. He, therefore, advanced the idea that the Bill should include a phase-out allowance so that replacement sponsors can be contracted to protect soccer funding.

Two opposition party members asked the following questions: (1) Length of time for phasing and (2) How does one know what children perceive when they see their heroes' advertisements? An ANC member asked about the feasibility of getting new sponsors.
Mr. Phillips responded that phase out will depend in part on the duration and extent of economic recession. The duration of existing sponsorship contracts is eight years, with seven to go. He thinks that sponsorship is innocent in the sense that event branding is merely what it is. Furthermore, he emphasized the capacity of rational judgement of consumers and thinks that promotion of events is important.

Professor Erasmus, Faculty of Law, University of Stellenbosch
Professor Erasmus drew attention to constitutional issues that are well elaborated in his written testimony. The thrust of his argument focused on the right to freedom. Freedom cannot be restricted without just cause; in his opinion, the Bill does not clearly manifest such a criterion. His statement aimed to shed light on the supremacy of the constitution and the values therein.

Ocean Action
Mr. Grobler spoke on behalf of a Durban beach sports organization. He spoke of the total dependency of beach sports (particularly the Gunston 500 annual beach festival) on tobacco advertising, and noted the economic benefits of those sports for Durban (namely those accruing to tourism).

An ANC member raised the concern that his points may be apropos for Durban city but the greater health of the nation should take precedence.

The rest of the meeting was not monitored: submissions were still to be heard from Midi Music Industry, Grey Advertising, Store Ads, Printmedia and Tobacco Exchange.