Tobacco Products Control Amendment Bill [B7-2008]: deliberations

Meeting report

The Acting Chairperson reminded Members that during the last meeting the Committee had informally run through the Bill, and certain matters had been identified to be taken forward for discussion and consensus. He suggested that at some stage it would be necessary to return to the Bill and run through it again. All Members were agreed that the Bill was, in principle, necessary. He reminded Members that the matters to be debated upon included the suggestion that the Irish legislation wording be incorporated, and the suggestions of Japan Tobacco Industry (JTI), Philip Morris and British American Tobacco (BAT) must also be considered, as well as the issues around advertising. The Departmental officials were present to respond to questions.
 
Mr M Waters (DP) asked why the Bill had included a brand element.

Mr Thami Mseleku, Director General (DG), Department of Health, stated that this had been in the original submission.

Ms C Dudley (ACDP) asked why commercial communication was included in the Bill and how that differs from any other type of communication.

Mr Mseleku replied that these words were selected on the basis on neatness of drafting.

Ms S Kalyan (DA) asked if “shareholder” or “stakeholders” was proposed to be included.

Mr Mseleku replied that during the debates it was suggested that “shareholders” was a more definite term and thus replaced “stakeholder”.

The Acting Chairperson stated that “importer” had also been excluded.

Mr Mseluku replied that it was in the next clause.

Mr Waters noted that the wording referring to “tobacco product” had been dropped, but that he saw that the tobacco product brand element was included..

The Acting Chairperson asked if was then better to add tobacco product back in  so that the wording read “to create an awareness of tobacco product”. He believed the tobacco product brand element should be included.

The Committee agreed to this suggestion.

Ms M Matsemela (ANC) asked for clarity if a tobacco manufacturer was also included in this.

The Acting Chairperson added that an importer must also been included, after manufacturer.

This was agreed to by the Committee.

The Acting Chairperson asked if there were any comments on the words “likely effect”.

Ms Dudley stated that this phrase had the potential to assist if there were any court challenges, and should be retained.

It was agreed by the Committee that the wording “likely effect” should be retained.

The amended definition of advertising was therefore agreed on by the Committee.

The Acting Chairperson stated that the issues raised by JTI on brand elements must be considered. It had complained that the definition was too broad and too unclear for regulation. No alternative suggestions had however been given by JTI.

Ms Kalyan asked if this definition included “brand stretching” (putting brands on clothes and caps and the like) and asked how this would be regulated, and whether it would fall within the mandate of the Department of Health or Department of Trade and Industry.

The Acting Chairperson stated that the Bill was designed to include protection from viral marketing.

Mr Mseleku asked members to look at this issues of the Bill in context. The Bill first defined advertisement, then brand element. This would include any commercial communication that created awareness of the product. 

Mr Waters asked if perfume using the same font and lettering of a cigarette brand could still be promoted as long as the cigarette was not there.

Mr Mseleku stated that “brand” needed to be well defined. Any association between the perfume and tobacco product would mean that the tobacco product was being advertised.

The Acting Chairperson showed an advertisement by Dunhill appearing in last week’s Mail and Guardian an advertisement from Dunhill was published;this was after it was made illegal.

Ms Kalyan reiterated her concern that this may be the mandate of the Department of Trade and Industry. She stated that this kind of legislation was putting people out of business and ‘flew in the face of free enterprise”.

Mr A Madella (ANC) stated that he thought the point of the bill was to curb smoking. The tobacco companies could claim it was just entrepreneurs using their brands if confronted to stop this. He asked if the concern of the Committee was not rather at the point of sale of Tobacco.

The Acting Chairperson stated that the Bill must be practical.

Ms Dudley noted that when Woolworths had stopped importing clothes from China there was an effective date so they could continue for a while, then had to stop. Something similar could, she suggested, be put in place in respect of tobacco.

Ms Matsemela stated that the Committee needed to be serious about what it intended to do with the Bill, noting that this this legislation might have a huge impact on stores.

Mr Waters stated that the Committee was unable to tell what the effect of certain clauses may be on the economy. He stated that the Committee could not restrict a legal substance to this extent. He stated that there was a need for the Department of Trade and Industry to give advice around these issues.

Mr Mseleku said that the current law stated that the brands on tobacco may not be used for advertising. This amendment did not restrict branding but did restrict advertising by way of branding. All that this amendment would be doing was strengthening these definitions that were already in the law, to close the loopholes. Branding was a trade and industry element. Advertising by branding was in the purview of the Department and of this Committee.

The Acting Chairperson said that the Committee must decide what was to be done with this Bill. There was a concern around the wording “In as far as it promotes tobacco use”.

Ms Dudley stated that the viral marketing avenue of advertising was very strong, and if the Committee left this avenue open it might as well abandon its attempts completely. Thus it would be hard to deal with this, but it was necessary.

Mr Waters reiterated that free trade was being seriously impacted upon.

The Acting Chairperson agreed, but stated that a compromise needed to be found.

Ms Dudley stated that perhaps the fact that tobacco was still legal was the compromise.

The Acting Chairperson stated that the Committee knews what it should address and needed to come up with a creative way to do so. He suggested deleting the words from “motto” to “symbol of product identification” from the clause.

Ms Dudley suggested asking the people who had submitted that there should be a clearer definition for “brand element” to assist in coming up with its formulation.

The Acting Chairperson asked a representative of Philip Morris to comment. That representative stated that “Marlborough Original Clothing” was not involved or related to Philip Morris.

Ms Kalyan stated that this supported her case that a company that had no link to tobacco may be affected by this Bill.

Mr Mseleku stated that it was known that there was not an ownership link between the tobacco companies and these other companies, but there must be some relationship, otherwise the trademark would never have been licensed for use. Thus, permission for use of the brand by the company showed some relationship. This could extend to organisations and enterprises even such as coffee shops and children’s clothing.

Ms Dudley stated that what the Bill was intending to do was describe a brand element. If Members were unsure that the advertising of the brand was the main source of the problem, then the definition of advertising should be reviewed.

Ms Matsemela asked if the whole statement could be deleted.

The Acting Chairperson replied that if the whole statement was deleted there was no point in dealing with the Bill at all.

Ms Kalyan asked if the Committee felt this could stand up to a Constitutional Court challenge.

The Acting Chairperson stated that he felt that the Committee should look at the concerns of JTI. He asked if the ultimate aim of the Committee was to close down the Marlborough clothing shops and perfume brands.

The consensus of the Committee was not, however, that there should be loopholes left open  for other advertising.

Ms Dudley suggested excluding the words “design, motto and print type face, recognisable colour or pattern of colour” from the brand element definition.

The Acting Chairperson suggested leaving the clause as it was, but stating at the end that the Minister could make certain exceptions.

Mr Waters did not agree, as he believed that the Minister already had too much power. He believed that the Committee should state what it would like to exclude, and examples might be adult clothing and perfume.

Ms Matsemela stated that companies trading in this country legally had not been consulted and that she did not think that these decisions should be left to the Minister.

The Acting Chairperson reiterated that the sentence should be left as it was, and then that the Minister should be permitted to make regulations with regards to certain exemptions.

A Parliamentary Law Advisor stated that there must be a short time period to allow companies to comply with these regulations.

Ms Matsemela agreed, noting that the Bill would have an impact on certain companies.

Ms Kalyan stated that leaving too much power to the Minister was dangerous. She asked, if this suggestion was agreed to, what time period the companies should have to apply to the Minister.

The Acting Chairperson stated that it had already been agreed between the Committee and Department of Health that all regulations to be made must be presented to the Committee. He pointed out that the regulations to be made by the Minister would thus come to the Committee.

Ms R Mashigo (ANC) asked what time frame was intended to be used by the Minister.

The Acting Chairperson asked Members to focus on the clauses before them.

Ms Dudley stressed that a time period must be given to the companies.

The Acting Chairperson reiterated his proposition to include a reference to regulations that could specify exceptions.

Mr Mseleku commented that while he agreed with the principle of the Acting Chairperson’s suggestion, he felt that a different place in the Bill should be found for this as it would be inappropriate to include it in a definition. He also clarified that regulations could never be made around something that was essentially not passed as the law.

The Acting Chairperson then suggested leaving the definition as it was but to add “as is designed to promote tobacco use.”

Ms Matsemela asked whether there was any urgency in passing this Bill. She had asked because some members were involved in other Committees and had other commitments.

The Acting Chairperson asked the Committee for its views whether the continue the discussions on this day. He believed it would be possible to complete the Bill as the only major issue was that around the branding.

Ms M Madumise (ANC) stated that the Committee requires the Department of Trade and Industry’s advice.
 
Ms Dudley reiterated that she believed that a specific time frame should be given to companies to approach the Minister and make sure they were not affected.

Mr Waters stated that the affected companies had not had time for sufficient consultation on this issue and he believed that the Committee would be opening itself up to a court challenge were it to push ahead. 

The Acting Chairperson asked for comment from the State Law Advisors.

A member of the Office of the State Law Adviser said that Parliament did not have to ask for specific comment from concerned companies, and thus were not open to challenge on this element. He stated that if brand name was removed from the Bill it would leave a large gap for advertising. Companies were affected by this clause. It was thus suggested that a time period for the Minister to give exemption to companies not related to the tobacco industry be given.

Mr M Sibuyana (IFP) stated that the Department of Trade and Industry surely had legal advisors who should investigate to what extent companies would be affected, and then give the Committee advice.

Ms Kalyan stated that due process had been followed, but the unintended consequence of these amendments would impact on companies, and they should thus be informed.

Mr Mseleku thought that the suggestion of allowing regulation by the Minister was sound, and that an appropriate place for this in the Bill should be found. He also suggested that the Committee should continue with the Bill, and that if this aspect was the only major problem it could be looked at in the greater context.

Ms Dudley suggested looking at the definition of brand element in other pieces of legislation to discover how it was defined and dealt with there..

The Acting Chairperson stated that this would be looked at when the Committee reconvened that afternoon.

Mr Waters asked for clarity on why the National Council Against Smoking (NCAS) had suggested replacing the word “selling” with “commercial use”.
 
A representative from NCAS stated that the Council felt all importers should be covered by the law, in respect of broader aspects, including research.

Mr Mseleku: stated that this must be looked at as a definition. It was not designed to restrict, but merely to define, who was bringing in tobacco. If importer were to be defined narrowly and only selling were to be included in the activities, then communication between the company and researcher could be construed as advertising. The inclusion of commercial and research purposes in the Bill would broaden the definition of importer.

M Sibuyana asked if it was not already the law that an importer state the intention of importing certain products.
 
A State Law Advisor stated that there should be certain legal restrictions for importing for research.

The Acting Chairperson suggested leaving the clause as it stood.
 
The Committee agreed to do so.

The Acting Chairperson asked for comments on the clause dealing with organised activity.

Mr Mseleku stated that there had been a proposal to omit the words “or is likely”.

Ms Matsemela asked for clarity on anonymous sponsorship.

Mr Mseleku stated that the question of anonymity would need to be raised again if the Bill included that it was not for the purposes of advertising.

The omission of “or is likely” was agreed upon by the Committee.

The Acting Chairperson addressed the wording of “wholesale”.

Mr Mseleku reminded the Acting Chairperson that it had been agreed in the previous meeting to leave in the word “wholesale”.

The Acting Chairperson stated that health warnings would be dealt with later in the Bill.

Mr Madella asked if the serial number printed on the box for tracing purposes would not be sufficient.

The Acting Chairperson stated that this was not the issue being addressed, as the identification of the contents was necessary.

The Committee agreed to part D relating to  “product placement” of the Bill.

The meeting was adjourned for the lunch break, to allow Members to consider the suggestions made.

On resumption of the meeting, the following amendments were read out as the suggested amendments:

Clause 1
The definition of “advertisement” was omitted, and instead, the following was substituted:
 “advertisement, in relation to a tobacco product-

means any commercial communication or action brought to the attention of any member of the public in any manner with the aim, effect or likely effect of –

promoting the sale of or use of any tobacco product;
creating an awareness of a tobacco product brand element or tobacco manufacturer’s name in relation to a tobacco product; or
being regarded as a  recommendation of a tobacco product;

includes product placement; and
excludes commercial communication between a tobacco manufacturer and its  trade partners, business partners, employees and shareholders and any communications required by law;

    and “advertise” had a corresponding meaning.”

Secondly, on page 3, line 22, the words “or is likely” were omitted.

Clause 2
The Committee agreed that under this clause, line 20 on page 4 there should be omission of:
 “A manufacturer or importer of a tobacco product shall not make any charitable financial contribution or sponsorship, unless such contribution or sponsorship is made anonymously”

and substitution of the words:

A manufacturer or importer of a tobacco product may make a charitable financial contribution or sponsorship, provided that such contribution or sponsorship is not for the purpose of advertisement”

Clause 4
On page 5, in line 36, a new number (a) was inserted after the subclause number (5)

On page 5, after line 38 a new subparagraph (b) was then inserted, with the following:
            (b) The prohibition contained in paragraph (a) does not apply to any commercial communication between a tobacco manufacturer and its trade partners, business partners, employees and shareholders.

Clause 7
On page 6 line 50, Members agreed to omit subparagraph (iii) and substituted;

“(iii) Other health-related messages such as advice on how to stop smoking”

Clause 8
On page 7 in line 26 omitted “4(4)”

Discussion
Mr Waters commented that the National Council Against Smoking (NCAS) had requested some words to be included in line 50 on page 3 for purposes of emphasis.

Mr Mseleku responded that there was no need to add any extra emphasis. The clause was sufficient as it stood.

The Chairperson referred members to page 4 line 20, in which an omission was to be done and substitution made, as requested by the Massmart submission.

Ms Matsomela had a concern with the JTI use of the word “anonymous” and she saw no need to include Clause 3(3).

The Chairperson suggested that members should read comments from JTI and the Department should address that, as Massmart amendments had been dealt with.

Ms Dudley noted that the issue of retailers had been excluded and suggested that retailer/manufacturer should be added.

Mr Waters agreed n and added that sponsors wanted recognition of sponsorship.

Ms Matsomela enquired what the rationale had been to remove the retailer, because subsection (2) exempted those principal businesses that had 10 % of their business in tobacco trading.

Ms Mashigo asked if members were referring to the Massmart recommendations.

Mr Mseleku suggested that there was no need for repetition, because there would be a display at the point of sale and obviously Massmart wass concerned about sponsorship. Therefore there was no need for an exemption, as the issue had been catered for.

Members agreed that they would support the amendment to Clause 3.

The Chairperson asked members to engage on Clause 5 of the Bill. 

Mr Dudley commented that sometimes the tobacco industry would sponsor Art exhibitions.

Dr Rabinowitz would have no objection to this.

Mr Mseleku said the Committee was beginning to get to the area he referred to earlier, in that there was no specification around quantities of goods. Packages could have one unit or three. There was no mention of loose goods but only packaged goods.

Ms Matsomela said that clearly there should be the aim of not selling cigarettes to children.

Ms Kalyan asked about the control of selling loose cigarettes in poorer areas.

Ms Dudley said that quantities should be mentioned in the clause.

Ms Rabinowitz suggested that the committee should delete Clause 7, because it was not the aim to promote smoking. Cigarettes would always be available as loose items , but the Minister would prescribe packages and not numbers. She felt that it would be impossible to prescribe what numbers could or should be sold.

The Chairperson said that the issue revolved around what Members wanted to achieve with this Bill. He referred to previous deliberations and stressed that the Committee should pass enforceable legislation. He also noted that the hearings were not fully publicised and the Committee was not penetrating to those people actually affected. The Committee was aware that media advertising of the hearings was expensive, and the Committee had limitations.

The meeting was adjourned.