Tobacco Products Control Amendment Bill (B24 - 2006): deliberation

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13 March 2007
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Meeting report

13 March 2007

Mr L V Ngculu (ANC)

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Following a summary of the issues that were deliberated in the previous meeting of the Health Portfolio Committee relating to the Tobacco Products Control Amendment Bill, the Chairperson requested the advice of both the legal experts and the Department of Health with regard to whether the Minister and or the Public had a right to information, such as the quantity of tobacco manufactured, marketing expenditure and product composition from tobacco manufacturers.

With reference to both the Promotion of Access to Information Act (Section 50) and to Section 32 of the Constitution, the Committee concluded that the provision in the Amendment Bill should remain as stated. This would effectively empower the Minister to obtain information, thus giving him or her the right to make regulations relating to the tobacco industry, and also allowed the public access to certain information, subject to Chapter 2 of the Constitution..

The Committee deliberated and agreed unanimously regarding a new exemption clause 4(h), which would empower the Minister to exempt any tobacco product if, in the opinion of the Minister, it was in the public interest for a particular tobacco product to be exempted.

Members agreed to leave Clause 4(c) as currently worded, and also to make no further changes to clause 2(1)(a)(ii), but retain the words relating to "a prescribed distance" despite the possible practical difficulties of enforcement. A new Clause 2(1)(a)(iii) would extend the prohibition to vehicles. The Committee agreed to a technical amendment of Clause 2(7) to address an oversight, so that the Clause would make reference to Sections 80 to 89 of the National Health Act. Members agreed to accept Clauses 5, 6, 7 and 8.

Members therefore agreed unanimously to adoption of the Bill.

Tobacco Products Control Amendment Bill [B24 – 2006]: Deliberation

The Chairperson summarised the previous deliberation that took place amongst the Portfolio Committee on the 06 March 2007. The Chairperson mentioned that the concept of prescribed distance, in relation to those smoking outside a building, was flagged for later deliberation. He reminded the Committee that it had previously agreed to the deletion of the word “club” on line 33 of the definitions, of the substitution of the word ‘while’ for the word ‘if’ in clause 2(c), and the change of the incorrectly typed ‘access’ to ‘assess’ in Clause 4(e). The Chairperson confirmed that some of the issues would need to be resolved in today’s deliberation.

He also reminded the Committee that discussion had halted at Clause 4(f), where it would resume today.

Clause 4(f): Information required to be submitted by tobacco manufacturers
Mr Sello Ramasala, Head, Legal Section, National Department of Health (DOH) referred to Section 50 of the Promotion of Access to Information Act and well as Section 32(1)(b) of the Constitution, and suggested that everyone had a right to access such information, including private individuals.

The State Law Advisor concurred with Mr Sello Ramasala.

Mr G Morgan (DA) acknowledged that information could be shared with private individuals in terms of the Promotion of Access to Information Act. He enquired from the Legal and State Law Advisors whether the public had the right to request information regarding the trade secrets of companies, as well as the information which was mentioned in Clauses 4(f)(i) to 4(f)(iii) relating to the quantity of the tobacco product manufactured and the marketing expenditure.

Mr Ramasala pointed out that the provision in the Bill explicitly stated that it was subject to Chapter 2 of the Constitution (the Bill of Rights) and therefore they would not have the right to access trade secrets.

Mr Mashile (ANC) added that the whole provision was subject to Chapter 2 of the Constitution, and hence did not need to be read piecemeal.

Mr Morgan (DA) enquired further as to whether the committee was not creating a redundant clause if the information could be accessed elsewhere.

The State Law Advisor clarified that the provision in Clause 4(f) was not intended to give the public the right to information, but rather to empower the Minister with the right to make regulations specifically relating to the tobacco industry.

Mr Ramasala further added that although this sub-clause may at first sight appear to be a repetition, it was relevant for the lay person who may be trying to understand what the laws were as they related to tobacco products control. Mr Ramasala concluded that it was necessary to include these provisions, even if repetitive, as long as no conflict existed in the legislation.

The Chairperson highlighted the concerns raised by Philip Morris relating to the sharing of information with competitors, and sought the opinion of the legal advisors and the Department of Health as to whether such concerns have been provided for.

Mr Ramasala confirmed that the information supplied to the Minister would not be shared with any of the competitors, thereby satisfying the concerns of the industry.

Ms M Matsemela (ANC) expressed her satisfaction with the explanations, stating that whenever the public wanted information from the state, the limitation of their rights would always be considered, and the privacy of that information would be protected.

Ms C Dudley (ACDP) acknowledging the opinions of the State Law Advisors and the Department of Health but disagreed, stating that the public should also be able to access the information highlighted in Clause 4(f)(i) to 4(f)(iv).

The Chairperson asked her to clarify her proposal.

Mr N Mashile (ANC) mentioned that the public already had access to this information, and this provision in Clause 4(f) would not change that.

Ms Dudley (ADCP) clarified that she was putting forward a proposal that the public should not have to clarify why, for instance, they needed the ingredients or the composition of the product.

The State Law Advisor responded that specific provisions such as this empowered the Minister to make regulations as and when required. He also clarified that it would always be subject to the Bill of Rights.

All of the members expressed their agreement with Clause 4(f) in its current form.

Clause 4(g)
All Members expressed their agreement with Clause 4(g).

Proposed new Clause 4(h)

Mr G Morgan stated that the IFP had previously proposed that there should be an insertion into the Bill effectively dealing with snus. He therefore made a formal proposal for the inclusion of a new Clause 4(h), to read as follows:

“The Minister may by notice in the Gazette exempt any tobacco product from a provision of this Act on such conditions as may be determined by the Minister in the notice; provided that, in the opinion of the Minister, it is in the public interest for the particular tobacco product to be so exempted, taking into consideration its harm reduction properties.”

Mr Morgan (DA) asserted that this was not exactly what the tobacco manufacturers wanted, as they had rather they wanted to include snus in the definition of a tobacco product. His rationale for this inclusion was that there could be a product which promoted an alternative to smoking tobacco and which reduced harm.

Mr Mashile expressed the view that the words proposed following the words “to be so exempted” in the last line, should be deleted, but he was satisfied with the rest of the proposed insertion.

Ms Dudley clarified that the ACDP supported the proposal.

Ms M Madumise (ANC) sought clarity from Mr Morgan whether this proposal was trying to exclude snus from tobacco products, and if so, why.

Mr Morgan (DA) confirmed his understanding that snus was a tobacco product, but highlighted the fact that he understood, from what was said in the public hearings, that it was significantly less harmful than tobacco. He further clarified that the proposed new addition would only apply as an exemption clause if the Minister chose to use it, and that it allowed the Minister the opportunity to exempt any tobacco product in light of any new research findings. Mr Morgan emphasised that he did not believe that this new provision detracted from the spirit of the Bill.

Ms Madumise suggested that the DA proposal be placed aside until further information had been gathered regarding snus.

Ms Matsemela asked whether it would be correct for the Committee, as legislators, to regard snus as a tobacco product, and highlighted the fact that snus was not included in the tobacco legislation of Sweden, despite that fact that it was said to be a Swedish product. She agreed with Mr Mashile about the insertion of the full stop after the word ‘exempt’ and further agreed with Ms Madumise that thorough research should be conducted regarding snus.

Mr A Madella (ANC) mentioned that his concern would be in relation to the definition, which related to the tobacco product. He agreed it would be valid to pursue further research around snus, and expressed his surprise with the proposal received from Mr Morgan (DA), especially since it gave the Minister additional powers. Mr Madella concurred with Ms Madumise that research was needed before the proposal of Mr Morgan could be considered.

Mr Morgan (DA) reiterated that it was important for the Minister to be able to choose to include this product, and emphasised that he was merely arguing for the opportunity for the Minister to provide some kind of regulation.

Mr Mashile clarified that the removal of the words “taking into consideration its harm reduction properties” from the proposal of Mr Morgan would ensure that there was no association with snus, which was why he had a serious problem with the way in which the sentence has been drafted.

Ms Dudley (concurred with Mr Mashile about the insertion of a full stop after the word ‘exempt', and the removal of the rest of the words from that sentence. However, she further proposed that the words “taking into consideration subsequent research findings” be inserted, which would seem to address the concerns of some members regarding further research.

Ms Matsemela asked Mr Mashile whether he was suggesting that the definition of tobacco product needed to be revisited, as it was causing some confusion.

Mr Mashile (ANC) explained that he was not proposing that the definition of tobacco product be revisited. He had a problem with the fact that a distinction was attempting to be drawn between snus and other tobacco products. Mr Mashile (ANC) again mentioned that if the last phrase of Mr Morgan's proposal were removed, it would give the Minister the power to decide.

The Chairperson enquired as to whether there were likely to be any be new developments regarding the definition of a tobacco product.

Mr Morgan (DA) understood why the Chairperson would ask the question, but nevertheless clarified that his proposal did not include changing the definition of tobacco product. This definition already provided that a tobacco product was “a product containing tobacco that is intended for human consumption, and includes, but is not limited to, any device, pipe, water pipe, papers, tubes, filters, portion pouches or similar objects manufactured for use in the consumption of tobacco.”

The Chairperson acknowledged the views of members that snus required further research.

He then repeated Mr Mashile's proposal that a full stop be inserted after the word ‘exempt’ and that the sentence end there.

Ms Dudley said that the rest of the sentence, which Mr Mashile had proposed be deleted, would mean that any tobacco product cannot be accepted, and mentioned that if this provision was not too broad it would provide further protection.

Ms Madumise asked Ms Dudley whether her concerns regarding the proposed addition for further research were not addressed in Clause 4(f)(i).

Ms Dudley responded that she had now proposed the additional wording in order to satisfy the concerns of the other members regarding further research. She personally would fully support Mr Mashile's suggestion to end the sentence after the word 'exempt'.

The Chairperson summarised the two proposals that we on the table for the consideration of the Portfolio Committee.

Mr Thami Mseleku, Director-General, Department of Health added his support for Mr Mashile's proposal to end the sentence after the word ‘exempt’.He added that ‘harm reduction’ would allow the Minister to consider other additional factors. Mr Mseleku mentioned that if it were discovered, for instance, that a medicine contained tobacco, then this Bill would be applicable, unless the Minister exempted the medicine because of its curative ability. He further added that the Minister could not be in a position to “take into consideration subsequent research findings” if any research findings had not been revealed yet. He did not believe that this clause had anything to do with snus.

Mr Sello Ramasala reported that both he and the State Law Advisor had agreed that if the Committee accepted the exemption clause, then this would need to stand as a clause on its own, as it dealt with exemptions made by the Minister. Mr Ramasala proposed that the exemption be added as Section 6A in the principal Act, with its own appropriate heading. The State Law Advisor concurred with Mr Ramasala.

The Chairperson then summarised this latest suggestion, which was to the effect that there would be a new clause, inserting a new Section into the Act, entitled ‘Exemption Clause’. This clause would read as Mr Morgan had proposed, up to the word 'exempt' in the last line. A full stop would be inserted, and the remainder of the phrase“taking into consideration its harm reduction properties.” would be removed.

All of the members were in full agreement with this proposal, and resolved to accept this latest proposal as put by the Chairperson.

Clause 5 (7)
Regarding Clause 5, all of the members agreed to subclauses 7(1), 7(2) and 7(3).

Mr Mashile said that he agreed with these clauses but enquired as a matter of interest why all of these contraventions mentioned in 7(1) to 7(3) were subjected to fines in monetary terms, and not fines that were as harsh as imprisonment.

Ms Matsemela (ANC) added that the imposition of the fines would follow a court process.

All members agreed to Clause 5(7)(4).

Clause 6: Preamble of principal Act to be substituted
All of the members were in agreement with this substitution.

Mr Morgan asked whether the second paragraph in Clause 6 was suitable for the current Bill, or whether it would not be more suitable for the section 76 Bill, where greater reference was made to advertising. Mr Morgan (DA) clarified that he had no objection whatsoever to the content of this provision.

The State Law Advisor responded that the splitting of content between Bills could be cumbersome, and would create technical problems.

Mr Morgan indicated that he was satisfied with the answer and would not pursue the issue.

Mr Mashile referred to the same second paragraph. He noted that advertising and promotion did not only have a particularly harmful effect of encouraging children and young people to use tobacco products, but also had a harmful effect on adult non-smokers, yet they had been excluded from this provision.

The Chairperson satisfied Mr Mashile’s concerns by highlighting the fines applicable to persons contravening the Act were subjected to.

All Members concurred with the provisions of all paragraphs of Clause 6.

Clause 7: Transitional arrangements
All members were in agreement with Clause 7.

Clause 8
The Committee noted that Clause 8 made reference to the Tobacco Products Control Amendment Act, 2006, and that this would need to be edited during the process to a reference to the Act of 2008.

Memorandum on the Objects of the Bill
Ms Matsemela enquired whether it was necessary to deal with the Memorandum on the Objects of the Tobacco Products Control Amendment Bill.

The Chairperson responded that this was not necessary as it did not fall under the legislative process.

Clause 4(c)
The Chairperson then reverted to the clauses that were flagged for further discussion during the earlier deliberations.

In Clause 4(c) there had been a suggestion that the word "if" be substituted with the word "while". He reminded the Committee that the point had been made that even if smoking were permitted in a dwelling during the times when commercial childcare activity, schooling or tutoring was not taking place, he room would typically retain the stench of smoke in the room. He therefore proposed that the word ‘if’ should remain, so that the clause read: “…no person may smoke any tobacco product in a private dwelling if that private dwelling is used for any commercial childcare activity, or for schooling or tutoring.”

All Members were in agreement with the Chairperson’s proposal that Clause 4(c) remain as currently worded.

Clause 2(7)
The State Law Advisor mentioned that he had a problem with Clause 2(7), which he acknowledged was an oversight on his part. He mentioned that Section 83 of the National Health Act (2003) was excluded from this provision, and therefore needed to be included. Therefore the State Law Advisor proposed that the phrase read “Sections 80 to 89…” which would provide for the inclusion of section 83.

Ms Matsemela clarified that she too had been concerned about this exclusion.

All Members concurred with the proposed amendment from the State Law Advisor.

Clause 2(1)(a)(ii)
Mr Morgan (DA) referred again to the protracted deliberations that took place with regard to prescribing a distance that people smoking outside must stand away from a door or window. Mr Morgan was particularly concerned about the practicalities of implementing a prescribed distance, as well as the fact that a definitive figure was not available. Nevertheless, he proposed that the words 'prescribed distance' be retained as it would enable the necessary regulations to be drawn.

Ms Dudley expressed her agreement with 2(1)(a)(ii).

Insertion of new subclause 2(1)(a)(iii)
Ms Dudley then suggested that a new subclause (iii) be created, which would deal with smoking in any motor vehicle. Mr Dudley clarified that with health legislation as it stands, 12 year olds were in a position to make decisions.

The State Law Advisor suggested that the Department dealing with the Bill would be best suited to discuss Ms Dudley’s proposal.

Mr Bennet Asia, Acting Chief Director: DOH, confirmed that he did not foresee a problem in principle regarding the protection of children. However he was concerned about the policing of this proposal, and questioned what would really be the gain in inserting this provision for children.

Ms Dudley agreed with Mr Asia's concerns, but mentioned that the legislators should be trying to encourage a culture of change by moving towards self policing.

Mr Mashile expressed his support for the spirit of this proposal. He thought the challenge was in restricting this provision to a motor vehicle, and not enforcing it on any other modes of transport.

The Chairperson mentioned that all airplanes were non-smoking, and that most yacht-owners were very protective of their yachts, and would not allow smoking on board. The Chairperson noted that motor vehicles were used by the majority of people, including children, on a daily basis, and understood Mr Asia's concerns on the policing of such a provision.

Ms Dudley suggested that Mr Mashile's concerns could be addressed by referring to smoking restrictions on 'any vehicle' as opposed to 'a motor vehicle'.

Mr Asia added that the spirit of the Bill should be promoted within this particular context and not necessarily with regard to the age of the child. Mr Asia further commented that the Bill should promote two main concepts, that of self regulation and that of health promotion.

Ms Dudley added that the provision for public places in Clause 2(1)(a)(i) should perhaps be widened to cover public transport, and she clarified that debate was still required on whether the age of the children should be stated as 12 or 18.

Mr Asia mentioned that the age issue, and protection of non-smokers and minors in particular, was an area where clarity was needed. He would be happy with including a provision, as previously suggested by Ms Dudley, for minors and under-age smokers.

Mr Madella expressed his support for the proposal from the ACDP, and mentioned that a new clause 2(1)(a)(iii) should be inserted, and that the currently numbered sub-clause (iii) would then become 2(1)(a)(iv).

The majority of Members agreed to the proposal.

The Chairperson then went through the Bill again, clause by clause, and summarised that Members were in agreement with each of the Clauses. Members therefore unanimously accepted the Motion to adopt the Bill

The meeting was adjourned.



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