Tobacco Products Control Amendment Bill [B24-2006] briefing by Department & Committee deliberations on Proposed public hearings

HEALTH PORTFOLIO COMMITTEE
31 October 2006
TOBACCO PRODUCTS CONTROL AMENDMENT BILL [B24-2006] BRIEFING BY DEPARTMENT & COMMITTEE DELIBERATIONS ON PROPOSED PUBLIC HEARINGS

Chairperson: Mr L V Ngculu (ANC)

Documents handed out:
Department of Health Powerpoint Presentation
Tobacco Products Control Amendment Bill [B24-2006]
Tobacco Products Control Act 83 of 1993
Government Gazette Volume 460 No 25601
World Health Organization Framework Convention of Tobacco Control (available at www.who.int)
List of Stakeholder/Persons Submissions
Suggested Programme

Relevant Document
Tobacco Products Control Amendment Act 12, 1999

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 Organisation’s Framework Convention on Tobacco Control (FCTC). Certain gaps within the South African legislation had to be corrected to ensure that the Convention could be enforced. On advice of the Joint Tagging Mechanism of parliament, the Bill had been divided into both Section 75 and Section 76 legislation. The Bill dealt with national environmental issues and trade, which was a joint national and provincial competency.

Members wanted further clarity on the division of the Bill. It was agreed that the parliamentary advisors meet with the Committee to explain the decision taken. Members also raised concerns regarding the statistics and methodology employed to measure current levels of smoking in South Africa, an indication of unregistered or illegal trade, the number of chemicals used in the manufacturing processes, and the impact of the international treaties in the content of the Bill, A member suggested that South Africa should be a smoke-free country. Further questions related to penalties proposed in the Bill, the strategies for education on tobacco use, whether international agreements hindered the economies of African countries that were reliant on tobacco as a national product, tobacco companies’ constitutional right to choose and exercise a trade, selling of candy flavoured tobacco products, supply of cigarettes to inmates at hospitals and prisons, monitoring of adherence to the legislation and the health dangers of tobacco products such as Snuss.

The Committee considered the schedule for the Bill and agreed to meet with the parliamentary advisors on 7 November. The public hearings would commence thereafter. If the process allowed, the Committee should try to finalise the Bill before 15 November. If not, then the public hearings could be extended into 2007.

MINUTES
Briefing by Department of Health on the Tobacco Products Control Amendment Bill
Mr Bernard Asia, Acting Cluster Manager for Health Promotions, Department of Health (DOH), explained the rationale for the Tobacco Products Control Amendment Bill (the Bill).

South Africa currently had a Tobacco Control Amendment Act 93 of 1993, but this legislation contained uncertainties that made enforcement difficult. Gaps in the legislation also led to non-compliance. The amendments now proposed in the Bill would correct the mistakes in the Act and bring South Africa in line with the World Health Organisation (WHO) Framework Convention on Tobacco Control (FCTC). South Africa was a signatory to 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. Prior amendments to the Act had decreased the incidence of smoking among adults and children. Currently, 22% of adults smoked, compared to 35% percent in 1995.

South Africa had made strides to control the use of tobacco products. These included the gradual increases in excise duties on tobacco products from 1994. The tax on these products was expected to rise to 50% of the retail price. The Tobacco Products Control Act 12 of 1993 specified the health warnings to appear on these products, prohibited smoking on public transport and restricted the selling of tobacco products to children under 16 years. The Tobacco Control Amendment Act of 1999 had prescribed a clean indoor air policy and had banned the advertising of tobacco products.

Changes in the global cigarette consumption revealed steady increase of consumption in low and middle-income countries. Tobacco companies were also targeting developing countries and tobacco contributed to the gap between rich and poor countries. 70% of all deaths in the developing world could be tobacco related .In South Africa, 60% of all admissions to Groote Schuur Hospital were tobacco related. The WHO considered this a “global public health emergency”

The Department explained that the Tobacco Products Control Amendment Bill was being put forward under two sections of the Constitution: as a Section 75 and a Section 76 Bill. The Section 75 portion dealt with environmental issues regarded as a national competency, while the Section 76 portion dealt with trade aspects that were regarded as a joint competency between national and provincial governments.

Discussion
Mr G Morgan (DA) questioned the Department’s statistics regarding adult smoking in South Africa. He asked the Department to explain the methodology employed in this research. He wondered whether smoking was defined in terms of illegal and legal cigarettes sales. He asked how DOH could be certain that the incidence of smoking had decreased to the level suggested.

Mr Asia answered that these figures were based on the survey data from the Global Youth Tobacco Survey and the South African Demographic Health Survey conducted by the Department of Health. These surveys were conducted bi-annually.

Mr Morgan thanked the Department for response, but asked for further clarity on the methodology used, particularly the measurement of the variable. This information was important to assess the reliability of the results.

Mr Asia requested the Chairperson’s permission to provide these research reports and results to Members. Given the time constraints, it would be impossible to provide a review of the methodologies employed and an indication of how these results had been analysed.

The Chairperson agreed, but added that the Department might need to present the Committee with an overview of these research reports. He cautioned members that methodological questions should not derail the focus of the Committee.

Dr R Rabinowitz (IFP) asked whether the Department had any number estimates on unregistered or illegal trade and use of tobacco products.

Mr G Mahlako (Acting Director for Health Promotion, DOH) answered that the amendments to section 75 would ensure that the trade in illegal tobacco products was more strenuously regulated. The Department received sporadic reports from border police about the confiscation of illegal products but had no concrete figures regarding this issue.

Ms N Mathibela (ANC) commented on the figures in the presentation that showed that more than 4 000 chemicals were used in manufacturing cigarettes.

Mr Mahlako responded that public health specialists had identified the reasons for the inclusion of such high numbers of chemicals in the production of cigarettes. The chemicals masked the harsh taste of tobacco and increased the effect of nicotine. The tobacco companies knew additional reasons.

Ms N Mdaka (UIF) commended the Department for developing the legislation. It was critical since young people were dying of diseases related to smoking. She said that research regarding the levels of smoking amongst South Africans was not an easy endeavour. Variables such as the illegality of smoking in certain age groups must also be taken into account. Tobacco smoking was highly private and sporadic and the Department could not be expected to establish such figures.

Mr B Mashile (ANC) thanked the Department for a very insightful presentation, but was disappointed that South Africa was not moving towards a smoke free country. Given the impact of tobacco and smoking, this would be ideal. He asked whether figures regarding the number of deaths due to smoking were adjusted to factor in population growth.

Mr Asia answered that the projections had been adjusted. However, these adjusted figures had to be reviewed to ensure that projections were in line with predictions.

Mr Mashile raised his concerns over the effectiveness of penalties proposed in the Bill. He said that the increase of the penalty from R200 to R500 was not high enough. If increases were necessary, the Act had to be amended.

Mr H Kleinhans, Legal Services Cluster, replied that, since Parliament was responsible for developing the Act, the legislature had the final say regarding the penalties. If this responsibility was passed on to the Minister, who had to administer the legislation, he or she could be perceived as having excessive powers, and this could endanger the constitutionality of the Bill. The penalties were therefore set in the Act and the legislation also made provision for regulations in the penalties clauses. These penalties were already determined by parliament.

The Chairperson responded that the issue on penalties would be discussed during a deliberative session in Parliament during the course of the next few weeks.

Ms M Matsemela (ANC) said that the “economics of tobacco use” was related to education. She asked the Department to explain the strategies it had employed to inform smokers about the health risks and the economic impact.

Ms R Motlapi Health Promotion, DOH answered that public education was a continuous focus of activities in the Department. Strategies included training and education regarding the making of healthy choices as well as issues relating to tobacco control. Public education campaigns and information were disseminated though provincial offices. A tobacco control programme on motivational interviewing was currently underway. The skills of health workers were also being developed and were an empowering tool that could be applied to all other interventions.

At a school level, tobacco control programmes had been integrated into the school curriculum. Projects such as health promotions, and those encouraging schools to become tobacco free environments had been launched. The schools were collaborating with research organs such as the Medical Research Council to develop targeted programmes that would nurture educators’ abilities to integrate tobacco control into the Life Skills syllabus of schools.

She continued that the focus of campaigns was aligned with the goals of the Department as well as the international awareness days. The Department was working towards the creation of better understanding among South Africans about the concepts related to tobacco control. When the legislation was passed communities were involved in dissemination workshops to familiarise themselves with the tobacco laws.

The Department frequently received complaints from the public regarding their rights to protected environments. They frequently complained about restaurants and other public spaces not adhering to the legislation on demarcated areas. Civil society, especially non-governmental organizations such as the National Council Against Smoking, should act as national gatekeepers that would ensure that tobacco companies and consumers adhered to legislation.

Ms Matsemela raised her concerns regarding the impact of South Africa’s obligations in terms of international treaties such as the WHO Framework Convention. Given that the economies of neighbouring countries such as Zimbabwe and Malawi were reliant on the tobacco industry, she was worried about the perceptions of South Africa importing a “foreign concept” to deal with tobacco control. She asked whether South Africa had a domestic approach to deal with this issue. She also requested clarity on South Africa’s legal obligations under the international instruments.

Mr Asia responded that the FCTC was merely a set of principles and did not prescribe how domestic legislation must deal with the matter. The treaty did take into account international best practices as well as lessons learnt elsewhere.

The Chairperson said that South Africa was a signatory to an international treaties and therefore had a responsibility to ensure that these specifications were adhered to.

Ms Matsemela expressed her concerns over the impact of the legislation on Section 22 of the constitution, dealing with the right to choice of trade. She asked if the legislation would not impede the rights of companies to practise their trade.

Mr Kleinhans responded that the Constitution also protected every person’s right to an environment that was not harmful to their well-being. This was also enshrined in the Bill of Rights. Moreover, Section 36 of the Constitution provided that the rights encapsulated in the Bill of Rights may be limited only in terms of the law of general application. He emphasised that the State had to ensure that the constitutionality of legislation could not be challenged.

Mr A Madella (ANC) said that the tobacco industry could oppose the legislation by arguing that the legislation could have a negative impact on job creation or economic growth. He asked if this would be a valid argument?

Mr Mahlako answered that this did not carry much weight. Recent studies confirmed that the number of deaths annually from tobacco products could not be compared to the number of potential job losses. He explained that 80 people died on a daily basis due to tobacco products, which translated into 30 000 deaths annually.

The Chairperson said that the economic impact of the legislation would be clarified through the submissions made by the relevant stakeholders the following week.

Mr Madella wondered whether candy flavoured tobacco products were sold in South Africa, and if young South Africans were being enticed by such products.

Mr Mahlako answered that candy flavoured tobacco products were available in the country. Recently, Lawyers for Human Rights consulted the Department about a Kwazulu Natal retailer who was selling such products to children. Unfortunately, since this issue was not covered in the current legislation, nothing could be done. This was another pointer to the fact that the amendments were necessary.

Ms M Malumise (ANC) asked whether the Department received complaints from non-smoking prisoners about smoking in prisons. Related to this, she asked whether the State continued to supply cigarettes to prisoners.

Mr Mahlako replied that no complaint had been received. He explained that the Department had to ensure that an institutional guidelines regarding smoking were implemented.

Ms N F Mathibela (ANC) asked whether the Department had any powers to persuade cigarette companies to reduce the number of harmful chemicals used in the manufacturing of cigarettes.

Mr Asia responded that, through the proposed amendments, the State would try to regulate this practice. Regulations to be issued by the Minister, provided that certain chemicals would be considered banned substances, as they had a detrimental effect on the health of a user.

Mr Morgan asked why the Bill had been split into a Section 75 and Section 76 portion. He asked whether this was related to the capacity of the Department to administer the Bill?

Mr Kleinhans explained that the Department preferred the Bill to be passed as a single piece of legislation, a Section 75 Bill. However, the Joint Tagging Mechanism of Parliament had advised that since the Bill also dealt with issues relating to trade, which was a joint national and provincial competency, it had to be passed both as Section 75 and Section 76 legislation. The issues included the legal and illicit trade in tobacco products, and the age level for use of these products. Hence, the Joint Tagging Mechanism had advised both the State Law Advisors and the Department that it considered these clauses were properly regarded as Section 76 legislation.

Dr Rabinowitz wanted to know why the entire Bill could not be made a section 76 Bill

The Chairperson responded that this would create additional complications. He explained that the Committee had based its recommendations regarding the status of the Bill on an understanding of all the information. This included the stance of the parliamentary advisors. He proposed that the Committee invite the parliamentary advisors to explain the rationale for the splitting of the Bill, so that Members had clarity prior to the public hearings.

Dr Rabinowitz believed that a solution was to request the advisors to tag the Bill as Section 76 legislation.

The Chairperson reiterated that the Committee had to consider all the relevant information as well as understand the problem, before making recommendations or proposals. Although Dr Rabinowitz was under the impression that all Members understood the problem, the Chairperson formally proposed that the Department and the parliamentary advisors be invited to make a presentation on this issue, before the public hearings commenced. The Committee accepted this proposal.

Mr Morgan commented that the Bill gave the Minister significant powers to regulate the number of chemicals to be used in the manufacturing of cigarettes. He asked if the Department had sufficient technical expertise to determine which chemicals were harmful. He stressed that the Department had to develop a relationship with manufacturers to ensure that the information obtained and the decisions made were not unduly harmful to the businesses of tobacco companies.

Mr Asia answered that the Department was currently utilizing the knowledge obtained from recently completed studies. He agreed that the comment on dialogue between the Department and tobacco companies was critical, and that this dialogue would impact on policies and legislation. The pending public hearings were also a significant mechanism to ensure that all stakeholders participated in the process. They would strengthen the Department’s efforts to engage additional stakeholders; so as to deepen understanding of the important issues faced by the tobacco industry and others.

Dr Rabinowitz requested more information regarding the effects of Snuss and asked what studies had been done to date regarding its harmful effects.

Mr Mahlako responded that Snuss was a Swedish product and there was information on its harmful effects. The Department did not differentiate between degrees of harm caused by a product. If it was found to be harmful, the Department would not approve of it. He reiterated that the WHO had recently confirmed that tobacco, in any form, was harmful. Its harmful effects included increased blood pressure and other cardio vascular problems. Public health practitioners had conducted ongoing research on this matter.

Dr Rabinowitz asked how the Department monitored the adherence to smoking regulations in public spaces such as restaurants and airports.

Mr Asia responded that the newly promulgated Air Quality Act provided specific regulations and prescriptions of how indoor quality was measured. Additionally, environmental health practitioners had been deployed at ports to control port health. This included the measurement of indoor air quality. The Act also covered air quality in residences. Environmental Health Practitioners were mainly employed by local authorities and were supposed to conduct ongoing checks on a regular basis.

Two members asked whether patients in hospitals, as well as patients in mental hospitals, were still supplied with cigarettes.

Mr Asia responded that this practice had been stopped. He said that the smuggling of cigarettes into prisons had proved to be a problem and personnel had to enforce the necessary regulations to control such practices. Similarly, visitors of patients in hospital often provided these cigarettes. Hospital personnel had to effectively monitor this practice.

Way Forward: Public Hearings and deliberations on the Tobacco Controls Amendment Bill
The Chairperson requested clarity on the number of submissions received. The last version of the list indicated twenty-five submissions, excluding those who would not participate in the pending public hearings. The Chairperson suggested the parliamentary advisors should be added as the first delegation on the programme.

Members expressed their agreement with the proposal.

Mr Morgan commented that it had been agreed at a meeting two weeks ago, that the Committee must requested the Committee Section of Parliament to re-advertise the notification of public hearings with the correct deadline date. He asked whether the advertisement had been published, and if not, whether any other means of communication had been used.

The Chairperson responded that the Committee Section had informed members the previous week that the advert had not been placed. However, the parties on the list had been notified and a public announcement had been made on SAFM’s parliamentary service. This had resulted in the current list of submissions.

Dr Rabinowitz asked whether, as the programme suggested, the Bill would be adopted before the end of the current parliamentary session.

The Chairperson explained that the last page of the Committee schedule had referred to the consideration of written submissions. These would comprise the submissions that were in writing only, and would not be presented to the Committee. Written submissions would be considered on 15 November.

Mr Morgan believed it was urgent that the Committee adopt the Bill as soon as possible. He suggested that since some of the stakeholders on the list had not yet been contacted, the public hearings should be moved to early 2007.

Dr Rabinowitz commented that the Committee should do as much work on the Bill as possible during this session, including the public hearings. If need be, the hearings could continue next year.

Mr Mashile expressed his agreement. He added that his opinion regarding the work on the Bill depended on the planned meeting with the parliamentary advisors.

Ms M Manana (ANC) also expressed agreement.

Ms M Matsemela (ANC) commented that Members had a political obligation to continue with the public hearings, and, if need be, to take the process forward also into next year. Members could not compromise the obligations of their constituency work for the public hearing. Public hearings could continue during the first parliamentary session in 2007.

Dr Rabinowitz asked whether the Committee had received any complaints from the public regarding the time given for submissions.

The Chairperson responded that no complaints had been received. The public had been given sufficient time to make submissions. The Committee was also quite flexible and had insisted that the public be given three weeks notice. He agreed with Ms Matsemela that the Committee, as legislators, had to do justice to the mandate given by the public. It was therefore important that the Committee commit itself to a thorough process. If the Committee could not finalize its work, entailing the consideration of all written submissions and interaction with experts, by 15 November, it could consider continuing the process at the beginning of the next parliamentary session.

The Chairperson thanked the Department and acknowledged the presence of Ms Zanele Mthembu and Ms Patricia Lombard, former officials in the Department. He stated that their participation in the public hearings would be very useful.

The Chairperson confirmed that the Committee would meet with the parliamentary advisors on Wednesday 7 November. The Committee would then start the public hearings, and this process would determine whether the legislation could be adopted before the end of the parliamentary session on 17 November. It was possible for the Committee to finalize the Bill before 15 November. Members agreed on the principle that public hearings could continue in the next parliamentary session.

The meeting was adjourned.