Draft Tobacco Products Control Amendment Bill, Draft South African Red Cross Society Bill: Department briefings; Committee Annua

HEALTH PORTFOLIO COMMITTEE
07 June 2006
DRAFT TOBACCO PRODUCTS CONTROL AMENDMENT BILL, DRAFT SOUTH AFRICAN RED CROSS SOCIETY BILL: DEPARTMENT BRIEFINGS; COMMITTEE ANNUAL REPORT: ADOPTION

Chairperson: Mr L Ngculu (ANC)

Documents handed out:
PowerPoint presentation by Department of Health on the Tobacco Products Control Amendment Bill of 2006
PowerPoint presentation by Department of Health on the South African Red Cross Society Bill
The South African Red Cross Society and Legal Protection of Certain Emblems Bill (first draft by State Law Advisors)
The Tobacco Products Control Amendment Bill (First draft): Part 1, 2 & 3
Health Professions Amendment Bill [B10-2006]
The Annual Report of the Portfolio Committee on Health January to December 2006 (available shortly at Committee Reports)

SUMMARY
The Department of Health reported that amendments had been proposed to the 1999 Tobacco Products Control Amendment Act during 2003. These were published for comment and over 2000 submissions were received. Having considered the submissions the Department had now revised the Bill. The aim of the amendments was to close loopholes in the 1999 Act, but also to amend the Act to strengthen the prohibitions on advertising, the promotion and sponsorship by tobacco companies, regulations on smoking in public areas, public health warnings by introducing a picture-based warning, and amend the packaging, to remove misleading descriptions, control ingredients and emissions, to establish manufacturing standards and to increase the fines for non-compliance. The fines had increased substantially, some sections up to R1 million, which was in line with other similar legislation. Each section of the Act, and the regulatory approach taken, was explained. Questions by Members included the economic effect of the Bill, particularly in regard to Spaza shop owners, the loss of revenue through taxes if tobacco sales declined, and whether there was a link between loss of jobs and revenue and the legislation. Other questions related to the hotline, children reporting their parents, and assistance given in quitting smoking. Individual rights and choices, where tobacco products did not harm third parties by omissions, were discussed. Imports of Swedish Snuss, illegal imports, cheap brands and labelling were raised. Penalties and the difficulties in enforcement were discussed and explained.

The Department of Health reported that it had decided to draft a Bill, in compliance with South Africa’s obligation under various treaties, to support the work of the components of the Red Cross. Although there had been legislation in place since 1915, this was based on the old Convention of 1905. The current Bill was intended to formalise the informal relationship between the State and the South African Red Cross, to give protection to Red Cross emblems and work, and to provide for penalties against those using its name or emblems for non-humanitarian purposes. The benefits to the State were outlined. The Bill was described, clause by clause, and it was noted that no attempt had been made in this Bill to define the work or aims of the Red Cross, as this was contained in other legislation that was incorporated by reference. Questions by Members raised issues and sought clarity on the definitions, in particular the lack of explanation of terms such as “armed conflict”, “humanitarian assistance” and others that had been discussed in the Defence Portfolio Committee. The question of partnerships was raised. The severity of the jail sentences for breach of the Bill was raised and explained.

The Annual Report of the Portfolio Committee for the period January to December 2005 was tabled and adopted unanimously.

MINUTES
Presentation by the Department of Health (DOH) on the Tobacco Products Control Amendment Bill (draft form)
Ms Z Mthembe (Director, Health Promotion, DOH), reported that the State Law Advisors had assisted in the present draft, but there were still some errors of wording, which did not reflect the Department’s intentions.

Mr H Kleynhans, (Director, Legal Services, DOH), summarised that the changes would be made as follows:
P. 13 of Draft, Clause 9(a), should have a semicolon in place of the full stop, followed by the word “and”
P. 13 of Draft, Clause 9(b). Sentence should break before “through the postal services” and these latter words drop to a new line, so that they cover both subsections (a) and (b). As the section was currently worded, there was a total ban.
P. 13 second last line, main body of Clause 11, should include the words “picture or pictogram”.
P. 14 Clause 11(c) should not contain the words “picture or pictogram”

The State Law Advisor had been asked to correct the version and produce a new draft that Cabinet would submit to the Speaker, and the Portfolio Committee would in due course be tasked with the formal process and would take public submissions.

Ms Mthembe summarised that an Amendment Bill had been approved for publication in 2003, and over 2000 public submissions had been received from various industries and individuals. Many of the comments had been incorporated in the new draft.

South Africa had acceded to the Convention on Tobacco Control in June 2003 and this was ratified in April 2005. 29 member states had ratified. South Africa needed to amend its legislation to close the loopholes and keep in line with international legislation and the Framework Convention on Tobacco Control (FCTC). The FCTC encouraged member states to go beyond what was in the FCTC.

The key points raised in the consultative meetings were product display, labelling, social and corporate responsibility, picture-based health warnings, package sizes and product regulation. The main intentions of the Bill were to introduce picture-based health warnings, to amend the Act to strengthen the prohibitions on advertising, to clarify promotions and sponsorships, to regulate smoking in public places, to remove misleading descriptions such as “light” or “mild”, to control ingredients and emissions, to restrict sales to any person under eighteen, to restrict the locations of vending machines for tobacco products, and to strengthen the fines imposed for breach of the Act.

Smoking was banned in all public places by the 1999 legislation, and restaurants were obliged to create separate smoking and non-smoking areas. A 2002 survey showed that 90% of workplaces had a smoking policy, and around 66% did not permit smoking at all on the premises. However, there were difficulties in enforcement. Proposed regulations in the Bill included increasing fines for owners and individuals who breached the rules, specifying that smokers must stand a reasonable distance away from doors and windows, imposing fines if a minor under 18 entered a smoking area, with or without their parents, and regulating tobacco in outdoor areas such as sports stadiums and hospital areas.

Advertising was banned in 1999, but the intention of this legislation was flouted by SMS, internet and electronic advertising targeting youth, with the intention of making smoking appear smart, glamorous and attractive. Marketers attended clubs, handing out free tickets to “smoking” concerts, which non-smokers could also attend. The Act was therefore no longer sufficiently protecting the vulnerable youth and public.

Tobacco companies were permitted, under the 1999 Act, to make donations, without raising the brand names. The original version of the Bill had banned donations, but after discussion with the industry it was decided to permit donations, if made anonymously, in the sense that although they would appear in the Annual Reports, no advertising would attach to the gift itself at the time.

In regard to difficulties in monitoring, Ms Mthembe stated that although certain bans were difficult to monitor, it was hoped that the Bill would in time become self-enforcing. Already people were reporting employers, or students reporting schools, for not enforcing the policies properly.

Point of sale locations were also restricted by the Bill, particularly in hospitals, where many tuck shops were no longer stocking cigarettes. Displays were restricted. The displays that allowed self-service led to pilfering, especially by the youth, and cigarettes were apparently the most popular targets for young shoplifters. Another issue on displays related to vending machines, which the Bill sought to regulate further by, firstly, restricting them to tobacco products only, and not choices of confectionary or drinks, and, secondly, by insisting that these specialised vending machines must be placed only in places where they could not be accessed by those under 18, such as in designated smoking areas of restaurants, rather than in the corridors or by reception. Fines were provided for breach. Some companies had been paying hotels to display their own brands only, and British American Tobacco (BAT) had recently been found in breach of the competition legislation. Anti-competitive schemes would continue unless point of sale legislation was strengthened.

The Bill permitted the Minister of Health to prescribe minimum package sizes, as cigarettes sold singly or in small packs did not carry the health warning. It was also far easier for young people to buy one or two cigarettes. The DOH hoped that people would understand the risks and take heed of warnings on packs.

Product regulation was also addressed in the Bill. Many products were now being flavoured to disguise the nicotine taste, and some chemicals added increased the nicotine uptake. There was growing concern, internationally, about the new forms tobacco took, able to be chewed, sniffed, or smoked. Swedish Snuss was a new product that had been claimed to be “less harmful”. South Africa believed that far more studies needed to be undertaken, as it apparently still caused oral and pancreatic cancers. It was banned in the European Union (EU) but was being imported to South Africa. DOH believed that the description “less harmful” should not be used, as it still caused harm. The World Health Organisation (WHO) had ruled that tobacco was “deadly in any form”. Although the primary aim of the legislation was to protect non-smokers from emissions, it also aimed to protect smokers by promoting and protecting public health, regulating the content of products, and ensuring that non-smokers were sufficiently warned of the health risks to deter them from starting to use tobacco products.

South African children were starting to smoke at around age ten, so the Bill, in line with the constitutional emphasis on rights of the child, aimed to raise the age for legal sales of tobacco products to eighteen. Monitoring would be a challenge, but it should not be impossible to have some system whereby age must be verified before sale. The Vending Machine Association had offered to monitor their members to check that vending machines were not accessible to those under eighteen. If problems persisted DOH might return to its original intention to ban all tobacco sales through vending machines.

The offences and penalties section had been substantially revised. There had been few successful prosecutions and the low level of fines in the 1999 Act had not acted as a deterrent. The fines had been raised so that they were now more in line with comparable legislation, such as the poaching legislation and the Liquor Act (fine for sales under eighteen was R1 million). Thus, for instance, the fines relating to failure to comply with smoking regulations in public places was raised from “not exceeding R200” to “not less than R20 000”; the fine for point of sale, display and vending machine breaches from “not exceeding R10 000” to “not less than R100 000”; and the fines on product information, non-compliance with standards and other issues from “not exceeding R200” to “not less than R1 million”.

DOH had looked at best practice in regard to picture-based warnings in countries such as Brazil and Thailand to ensure that illiterate people could still understand the health warnings. DOH intended that the Bill should use all methods to achieve its objectives, and should be coupled with an intensive public awareness campaign.

Discussion
The Chairperson asked for comment on the industry’s complaints that their comments had not been listened to by the Department.

Ms Mthembe stated that this was simply not true. Full information sessions had been held, some with more than one company present. Obviously DOH had to fit the requests in to their schedule, but meetings had been held, the last of them in May 2006. DOH was not obliged to accede to all requests but had agreed to amend only where the suggestions accorded with the spirit and objects of the Bill. The fundamental aims were to ensure that non-smokers did not start smoking, and were protected from emissions. DOH hoped that non-smoking would become the social norm. The level of awareness was already developing and people were recognising the benefits. It did not seek to ban smoking, but to control it responsibly and persuade people to pay more attention to what they were doing when they did smoke.

Ms M Matsimela (ANC) asked if the Bill had taken other factors into account, such as possible unemployment if companies were forced to close, or to pay substantial fines. She also queried the effect on tax revenue if fewer cigarettes were purchased. Ms D Kohler-Barnard (DA) also raised the question of taxes.

Ms Mthembe confirmed that these points had been taken into consideration, and that DOH had consulted international researchers. The World Bank stated that tobacco legislation had not jeopardised any economic situations in any country so far. The amendments in South Africa in 1999 gave rise to much outcry about job losses, restaurant losses and so on, but nobody had proved any loss actually occurred as a direct result of the legislation. There certainly had been job losses over the years in the industry, but these were attributable to the increased mechanisation, and to the fact that fewer farmers were farming the crop because 40% of all cigarettes in South Africa were imported, due to better quality of leaves from other countries, and improved technology. Within FCTC the World Health Organisation (WHO) encouraged tobacco-producing countries to assist their farmers and workers to diversify into other cash crops. This issue had been debated in Geneva in February 2006, when developed countries pledged support, particularly to countries like Zimbabwe and Malawi, who were heavily dependent on tobacco exports.

On the question of taxes, Ms Mthembe confirmed that the government received around 52% tax on tobacco sales. FCTC had proved that increased taxes tended to deter smoking, as tobacco became less affordable. Some would smoke regardless of the cost, because of the addictive product. The government could certainly find other sources of revenue, and was not in fact heavily reliant, despite the high percentage of tax, upon the revenue generated by tobacco products.

Ms D Kohler-Barnard (DA) took issue with some comments made in the media that the DOH would ensure that the Bill was passed, reminding the Department that this lay in the hands of Parliament.

Ms Kohler-Barnard was very concerned with the statement that some children were phoning the Department to report that their parents or teachers had been smoking and asked if DOH encouraged children to report on their parents.

Ms Mthembe commented that DOH were pleased that children were reporting their parents as it proved that they had become aware of the harmful effects of tobacco products and did not wish to be exposed to them, nor for their parents to injure their own health. DOH would talk to parents to make them aware of the laws and the dangers, and a number of parents had asked for help to stop smoking. The intention was to make people aware and DOH assisted a number of learners with the correct information about the dangers.

Ms Kohler-Barnard commented that the Bill and the Act were aimed at protecting non-smokers from smoke. However, there were many products that did not give off emissions. She pointed out that individual rights were equally important, so that a smoker should be permitted to smoke, provided that this did not harm others. She queried whether DOH should be determining whether the individual choice was a bad one, or whether a restaurant should be prevented from opening as a “smoking restaurant only”. She was interested to hear what was being done in Sweden.

Ms Mthembe confirmed that DOH supported the individual’s choice, but believed that a person should be able to make a fully informed choice, which was the reason for enforcing correct product information and packaging warnings. More work would need to be done on the smokeless products, but even these had been shown to have harmful effects, albeit perhaps less harmful than cigarettes. There was the worry that people would, instead of stopping smoking altogether, opt to switch to “less harmful” forms. Although it was indeed up to the individual, DOH would always strive to raise public awareness around the harmful effects of tobacco. There was no attempt to prevent sales, but only to enforce compliance with stricter standards. The same would apply to smoking in restaurants.

In regard to the situation in Sweden, Ms Mthembe stated that South Africa could not currently prevent the imports of Swedish Snuss but aimed to ensure that the packaging contained the truth about the product. The international Committee would be looking at the standards of products and South Africa would participate in those discussions.

Ms Mthembe stated that only around 22-25% of adults currently were smokers. The majority of 13 to 18 year olds did not smoke, but the number of young girls smoking was on the increase. DOH wished to ensure that the prevalence decreased further each year, and to ensure that non-smokers never started to smoke.

Mr A Madella (ANC) was in support of a smoke-free environment but asked for further information on the fines, and stressed that it would not serve the purpose if a wealthy tobacco company could afford to pay fine after fine without any further steps being taken. He believed that continued contraventions should carry other forms of punishment. On the other side of the scale, he asked about the economic impact of the legislation on small entrepreneurs, in particular the Spaza shops whose sales of tobacco products mostly comprised the single or small packs of cigarettes. He believed it was important to find a balance.

Ms Mthembe confirmed that DOH was aware of the Spaza shop sales. It was a source of living, but it was not health-enhancing and DOH would like to encourage shop owners to find alternative products to sell. Monitoring would be a challenge. DOH was not setting out to target the small shops or traders simply trying to make a living. The legislation was aimed primarily at the large producers. If individual smokers and individual sellers were better informed about the products, they would be able to make better choices. Again, she reiterated that there had been no proof that stricter legislation in itself would cause economic loss. She confirmed that the fines had the potential to be substantial, but the main issue would be continued education from DOH. Some companies would be able to afford to pay several fines, but the courts would have to impose appropriate penalties. The fines must be balanced against the cost of smoking; over 60% of Grootte Schuur’s admissions were tobacco-related diseases.

Ms Matsemela asked whether DOH had gone beyond the treaty, in particular in relation to snuff produced in South Africa, which was known to cause cancer. She asked whether enough was being done about customs, as many unnamed cheap brands of cigarettes were also available.

Ms Mthembe stated that most of the cheap brands sold on the streets were illegal imports, and that the Scorpions had recently charged a company. DOH had a special unit for law enforcement, not just limited to tobacco products, and would enforce the standards strictly. In regard to snuff, more work still had to be done on the Swedish import. DOH wished to enforce that strict and accurate health warnings were carried on all tobacco products.

In response to a question from Ms Kohler Barnard, Ms Mthembe confirmed that the company charged was Mastermind, which was a South-African based company.

Ms P Tshwete (ANC) asked what other concerns had been expressed by the industry, apart from the possible loss of jobs.

Ms Mthembe stated that other concerns had included the social corporate responsibility donations, and the health warnings to be carried on all products, which would in future have to comprise between 50 and 70% of the packaging. They had also addressed the issue of the changed policy on vending machines. With regard to the picture-based health warnings, DOH would use a focus group to find out which warnings carried the most impact.

Ms R Mashigo (ANC) stated that a large part of the Bill emphasised children. She asked whether as much emphasis was placed on current older non-smokers, since youth were more prone to following certain lifestyles. She asked if DOH gave assistance to those who wanted to stop smoking.

Ms Mthembe confirmed that quitting smoking was a serious and difficult problem because of the addictive products. Very few people smoked because they wanted to. DOH did not work on its own but worked with NGOs who supported in the education process, public awareness campaigns, running hotlines to help people quit smoking, and promoted a healthy lifestyle approach. If smoking was not limited or stopped, DOH would continue to have to spend money on diseases that could have been prevented. There was a wide range of support groups, who looked at best practice in other countries, and adapted their programmes to suit local conditions. The groups would continue to be strengthened. However, the very nature of the addictions leant further support to DOH’s conviction that the additives and products needed to be more strictly regulated.

Ms Kohler-Barnard asked if there was any indication why young girls were susceptible to smoking.

Ms Mthembe replied that this was still a relic of the old advertising that had portrayed smoking as smart, sexy, cool, and an aid to losing weight. This was apparently a global trend.

Ms Kohler- Barnard stated that the proposed legislation cut off avenues for advertising, and asked what companies would do to market their goods.

Ms Mthembe did not believe it was for her or the department to propose how the companies should market; save to state that they would have to find ways of doing so within the law.

Ms Mthembe stressed that there would certainly be challenges in enforcing the legislation. This did not mean that it should not be pursued. Since the ban on smoking in public places, it had not been necessary for DOH to have inspectors in cinemas or shopping centres; people tended to conform, or were reminded of the need to do so by others. With time, this Bill would similarly become self-enforcing. DOH was however committed to giving people sufficient information to make informed choices.

Presentation by the Department of Health on the South African Red Cross Society Bill
Mr P Fuhri (Director, Emergency Medical Services, DOH) gave a brief background to the formation of the Red Cross Society in 1863, and its current work in providing war and non-war related humanitarian assistance. The Red Cross internationally held to the principles of humanity, impartiality, neutrality, independence, voluntary service, unity and universality. Its work ranged from performing tracing services, undertaking education in international humanitarian law, disaster relief, air mercy services, community programmes and first aid training. Red Cross had partnered the South African government in the tsunami disaster relief aid, and had assisted in distribution of aid parcels. The provinces of the Northern Cape, Western Cape and KwaZulu-Natal were also in partnership with the Red Cross in fixed programmes.

The main Red Cross Act followed Article 2 of the Statutes of the Movement, stating that each state should promote the establishment on its territory of a National Society, encourage its development, and support its work wherever possible. There were 139 National Societies worldwide and 41% were assisted by local national legislation.

The objective of the Bill now presented was to formalise the present informal relationship by legal recognition, and give legal protection to the Red Cross and its emblems. A number of concomitant benefits would arise to the State, including the fact that the Red Cross was a member of a major international NGO; that it undertook community-based projects and that it would contribute to its sustainability. Its work in projects and the air mercy service were beneficial. Its experience in disaster management, ranged through risk reduction, humanitarian relief, personal and financial resources, donor funding, a national network and international network. This had recently been demonstrated when the Red Cross was able, through its contacts in Kenya and Somalia, to arrange for aid from South Africa to be delivered to Somalia.

Mr S Ramasala (DOH) summarised the provisions of the Bill. It was a draft, not yet certified by the State Law Advisor, but would be tabled after it had gone through this process.

Clause 1 contained the definition section, with special reference to the three emblems to be recognised.

Clause 2 dealt with recognition of the Red Cross Society (RCS).

Clause 3 set out the objects of the RCS. These were very broadly stated. The intention had been to keep the Bill simple, and merely refer to the existing conventions and other legislation, rather than seeking to redefine. Details of what RSC undertook, how it defined its humanitarian objectives, and so forth, were contained in enabling legislation. Their objects were broadly stated as “to prevent and alleviate human suffering and foster human dignity in all communities”.

Clause 4 dealt with its functions – and similar comments applied here as to Clause 3. Reference was made to Conventions, Protocols, Rules of the Society and any international agreement that was binding.

Clause 5 dealt with the use of medical personnel, and the fact that any personnel used would be subject to the laws applicable to personnel and resources of the State.

Clause 6 related to the emblems, and Clause 7 explained when they could be used with the authority of the Ministers of Health and Defence. The various other laws also explained this.

Clause 8 placed a duty on the Minister to ensure compliance with the provisions on emblems, and take steps to prevent their wrongful use.

Clause 9 dealt with penalties and offences, which would include a fine or five years imprisonment. Provision was also made for a situation where the transgressor might be a company.

Clause 10 dealt with seizure of anything used in contravention of the Act.

Clause 11 dealt with delegation of powers by the two Ministers.

Clause 12 dealt with the Minister’s right to make regulations relating to the employment of the emblem by civilians.

Clause 13 dealt with the repeal of old laws, in particular the statutory recognition granted in 1915, which was based on the old Convention then in force.

Discussion
Ms Kohler-Barnard asked why it was thought necessary to impose a jail sentence of five years on offenders.

Mr Ramasala explained that this related to the misuse of the emblem, which was tantamount to fraud. Therefore DOH believed that severe punishment was warranted. In addition, a person using the Red Cross emblems would be using the generosity of the State in recognising the Red Cross and according it certain privileges. This penalty was in line with international norms.

Ms Matsemela asked why no attempts had been made to define “non-war” and “humanitarian actions” and similar phrases that had been the subject of discussions at the Defence Portfolio Committee recently.

Mr Ramasala clarified that no attempt had been made to define these phrases because they did not appear at all in the Bill. The drafters had thought it preferable simply to refer back to the enabling legislation, which would include international Conventions, rather than seeking to repeat the definitions or attempting to redefine them. Not every function of the Red Cross was stated in the current Bill.

Ms Matsemela asked whether the DOH should not at least attempt to define what was regarded as armed conflict, and non-armed conflict, so that there was a clear indication of the type of assistance offered. She was worried that many mercenaries claimed to be working under a number of “humanitarian” organisations, and an attempt to put a definition on humanitarian activities would serve to clarify.

Mr Ramasala explained that once again, none of these words or phrases were included in the Bill and therefore could not be defined in the definitions section. If there was any dispute as to whether humanitarian actions were being carried out, it would be determined in South Africa by the authority granted to the Ministers in terms of Clause 8, which would involve an examination of whether parties had complied with the use of the emblem.

Ms Mashigo asked how partnership arrangements worked. She mentioned that a company she had worked with had apparently been in partnership with Red Cross but the assistance never transpired.

Mr Fuhri answered that other organisations were not prohibited from providing similar assistance as the Red Cross, but there should be a formal link before the name of the Red Cross could be used. For instance, Pick and Pay had entered a formal arrangement with the Red Cross for distribution of food parcels to areas affected by the tsunamis. He could not comment on the situation mentioned, but stated that it probably depended on the agreement. In disaster relief it would not normally create any problem to use the name, but in areas of armed conflict special dispensations were supposed to be given to the Red Cross and its workers. The legislation worldwide sought to protect the emblem so that people understood that they were neutral.

Adoption of Annual Report of the Portfolio Committee for the period January to December 2005
The Annual Report was tabled. Members agreed unanimously to adopt it.

The meeting adjourned.