Several tobacco companies had sent letters of complaint in the past week to the Chairperson of the Committee listing their concerns about the legislative process of the Tobacco Products Control Amendment Bill thus far. They stated that the public participation process as required by the Constitution was being undermined and they listed reasons for this assertion. The Committee discussed this complaint. The Department asked to respond to the letter from the tobacco industry but the Chairperson ruled that it was the wrong platform for such a discussion. The Committee decided to extend the time period for the public to submit the submissions on the Bill until early May.
The Committee was interested in the studies that the Department had done to support their claims. Questions were asked about charitable donations and whether the anonymity of such donations was against Financial Intelligence Centre regulations. They were also interested in how the Department would be able to enforce the prohibition of the sale of loose cigarettes in rural areas. The Department emphasised that the community would be regarded as the prime agent for enforcement, as well as the health inspectors, but that this aspect would have to be addressed in education campaigns. The interaction between this Bill and the Framework Convention on Tobacco Control, to which South Africa was a signatory, was discussed, and the powers of the Minister of Health were clarified.
Public participation on Tobacco Products Control Amendment Bill
The Chairperson explained the letters from the British American Tobacco SA and from Webber Wentzel, on behalf of certain tobacco companies, that raised a complaint about the short time period allowed for public submissions on the Tobacco Products Control Amendment Bill.
He noted that the Bill was published in the Government Gazette on the 29 February 2008 and was referred to the Committee on 7 March 2008. The Committee had then advertised for public submissions in the Sunday Times, City Press, Sowetan and the Weekend Argus giving a 20 March deadline. The Chairperson recognised that the advertisements were usually posted in the business section of the newspapers and most people did not read the business section of newspapers. The Chairperson asked the Parliamentary Legal Advisor to give her opinion on the letters received from British American Tobacco South Africa and Webber Wentzel.
Ms Zuraya Adhikarie, Parliamentary Legal Adviser, stated that all compulsory legislative provisions had been adequately adhered to.
Mr M Waters (DA) asked if the Chairperson was certain that due process had been followed, since the Webber Wentzel letter stated that there had been a failure to provide where applications for oral submissions should be made.
The Chairperson read the advertisement and found that all relevant information had been given.
Ms Xolisa Thamdula, Principal State Law Advisor, clarified that the letter had noted that those wishing to participate at the hearings were not catered for in the advert and had not been given the opportunity to speak. She clarified that the agenda for the 11 March meeting was the briefing by the Department on the Bill so that when the public hearings were held on 25 and 25 March, the Committee would be properly informed.
Ms C Dudley (ACDP) asked how many submissions had been made.
The Chairperson replied that he had not received any substantive responses on the Bill.
Mr Thami Mseleku, Director-General: Department of Health, hoped that the Department would be given the opportunity to put on record their views and response to the letter by the Tobacco Industry since they were not part of the public hearing process.
Ms S Kalyan (DA) noted, on a point of order, that the Committee was surely not the platform for the Department to defend itself. The Director-General had mentioned previously that the Department would deal with the letter through legal avenues and the Committee, had sought the advice of the parliamentary legal officer.
The Chairperson reiterated that all the relevant processes had been followed. He added that because the informal briefing was constrained by time the Committee had carried over the informal briefing to this meeting. This was not the platform for discussion on submissions by the Department or other stakeholders. Therefore he would not allow the Department to respond on the issue raised by the Tobacco Industry.
The Chairperson mentioned that members of the public were encouraged to submit their written submissions.
Ms Dudley suggested that the Committee not push the public hearings into the week after Easter, but rather give the public more time to submit their submission, to ensure that they avoid any court challenges.
The Chairperson noted that he had obtained agreement from all the political parties and would extend the time period given for the submissions from members of the public. After the parliamentary recess the Committee would meet to deliberate on the Bill. This would give the public sufficient time. The Committee would next meet on 6 May to deliberate on the Bill.
Tobacco Products Control Amendment Bill: informal discussion
Ms Kalyan asked the Department what research had been done about the total number of deaths caused by cigarettes.
Ms Mseleku replied that the Department could provide research done by both the Medical Research Council (MRC) and the World Health Organisation (WHO).
Mr Waters mentioned that anonymous charitable contributions were contrary to the Financial Intelligence Centre Act (FICA) rules. He wanted to know how the Department would get around that piece of legislation.
Mr Mseleku replied that it was a legal issue. In his understanding it was not in contravention of FICA since there was a way to perhaps contact the donor.
The Chairperson added that they would have to deal further with charitable donations and anonymity.
Mr Waters asked if the Department would be looking at legislation, further down the line, which would ban the sale of alcohol from campuses and hospitals.
Mr Mseleku replied that alcohol was not sold in hospitals but given or served. In certain educational institutions there were places that sold alcohol. The Department would want to ensure that tobacco was not sold or promoted at campuses and hospitals in a manner that was adverse to the Bill.
Mr Waters asked if excise duty payments were a Trade and Industry matter. He asked, since this was not in the preamble of the Bill, where this issue would it fit in.
Mr Mseleku replied that there were different interests from different departments on a number of issues. In this context the reference was meant to justify and to explain why those clauses were required, because of the difficulties that were outlined. The Department of Health (DOH) had not taken away the responsibility from the Department of Trade and Industry (dti). Their responsibility was highlighted because of the problems that were identified. The Bill had gone through the Cabinet process where all the Ministers had given their input. If there had been any conflicting issues, then it would have been brought up at that stage. The DOH had consulted widely on the Bill.
Ms M Madumise (ANC) asked if the Minister was authorised to regulate what went on the markings, and whether the powers of another Minister were similar.
Mr Mseleku replied that the responsible Minister may consult with other ministers, but the decision was ultimately that of the responsible Minister in this case it would be the Minister of Health since it was a health message.
Ms Kalyan asked if the Framework Convention on Tobacco Control (FCTC) and the Bill warned government and other States to avoid engagement with the tobacco industry.
Ms Mmathari Matsau, Deputy Director-General: Department of Health, replied that the FCTC encouraged interaction with the tobacco industry but warned against allowing the tobacco industry to draft legislation. There was the global belief that the more interaction there was, then the more likely it was that the issue of tobacco could be resolved amicably. Particularly in those countries where tobacco was the biggest generator for the economy, there was a clause in the Convention that dealt with finding other ways to generate the economy.
Ms Kalyan mentioned that the FCTC was ratified by South Africa. She asked whether the Bill complied with the FCTC.
Mr Mseleku replied that the processes of the FCTC had taken place parallel to the Bill since 2001. The reason for the Department not having moved faster on the Bill was because the FCTC was also meeting to finalise its content. The Department had wanted to know if there was a need to add to or detract from the Bill as a result of the FCTC. The Bill was in line with what was ratified by South Africa and should be complied with. The fact that South Africa was hosting the next Conference of Parties had nothing to do with the Bill.
Ms Kalyan asked what were the financial implications for the Bill. She asked what was the positive impact for the State.
Mr Mseleku replied that he would give a broad answer. The Department would like the Medical Research Council (MRC) to do a detailed const-benefit analysis in relation to the Bill. The financial cost of administering the Bill would be lessened if the administration of the Bill was successful. The Department believed that the State, through implementing this Bill, would save more than it would have otherwise have spent in dealing with the consequences of unregulated tobacco.
Ms R Mashigo (ANC) asked if the Department had considered all the points of sale such as those in the rural areas and the townships.
Mr Mseleku replied that the Department had considered all those places and hoped that the individuals in the townships, shebeens and rural areas would take heed of the Bill. He believed that enforceability came from the community itself.
The Chairperson expressed his wariness about passing a Bill that would be difficult to implement. Prohibiting the sale of loose cigarettes would be nearly impossible to enforce.
Mr Mseleku replied that the Bill was an enabler. The community was able to protect people from smoking.
Ms Madumise asked for further clarification about the Minister being able to prescribe the minimum package sizes, and what the minimum would be.
Mr Mseleku replied that the Department had introduced an enabler for the Minister to deal with the package size, with the intention of dealing with the issue of loose cigarettes. He was not certain what would be the exact number of the minimum, but he did know that it would not be less than five cigarettes.
Ms Dudley asked if there had been studies on this issue.
Ms Matsau replied that there were studies and that she would forward these to the Committee. The primary focus was children. Loose cigarettes were more accessible than packets and therefore the Department wished to address that risk.
The Chairperson did not disagree. Policing in rural areas was itself difficult and the enforceability of this would be even more difficult. Loose cigarettes were profitable to small shops.
Ms Matsau agreed that it would be difficult. Their weapon would be the community and its ability to enforce the Bill.
Mr Waters asked what sort of education would be given to those outlets that sold cigarettes, so that they would not sell to young children.
Mr Mseleku replied that the Department had always provided an education programme. They would ensure that their education programme educated people on the Bill, and this would include children.
Mr Waters asked if the Department would entrench a monopoly if they were to restrict advertising.
Mr Mseleku replied that their concern was with the health of the nation. The Department’s commitment was to see an alternative to the tobacco industry. A consequence of the Bill might be that one group became entrenched, but this was not their primary concern.
The Chairperson mentioned that education should be more important, and there was a need to look closely at enforcement issues.
Ms Dudley asked if the issues raised by the Bill would be added on to the duties for the health inspectors.
Ms Mseleku replied that he wished to emphasise that the Bill was empowering to the community and they would be better inspectors than the Department’s health inspectors. There were structural issues that would play a role - for instance when there was a discussion on whether there should be a tobacco monitoring institution. There was no specific unit that would enforce the Bill but there were other ways to enforce it.
The meeting was adjourned.
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