The Committee continued its deliberations on the Tobacco Products Control Amendment Bill. Members debated whether to retain clause 2(7) of the Bill and after much discussion decided to delete the clause. Most Members were sceptical whether the Department of Health could enforce the prohibition on the sale of loose cigarettes. In the end, Members were satisfied that the Department would engage and educate the public on this matter. In respect of Clause 3, the Committee discussed whether the provision infringed the tobacco industry’s trade secrets and right of confidentiality. The salient issue in Clause 4 was the ban on the sale, supply and distribution of tobacco products through the post and the electronic media. No amendments were effected to Clauses 5 and 6. Lastly, the Committee discussed advertising (in clause 7) at the point of sale.
Introductory Remarks by Chairperson
The Chairperson recalled that the Committee had flagged Clause 2 (7), which stipulated that “no person shall sell or offer to sell a tobacco product except in a package containing such quantities or number of units as may be prescribed” because there were differing opinions on this issue during the previous deliberations on the Bill. The clause was based on one essential principle - to limit the easy access of tobacco. Concerns were raised whether this clause could be implemented, whether it would achieve its desired result and its impact on small and medium enterprises. Lastly, he highlighted that the Committee had two options to consider; either to leave the specifics to the regulations, or to delete the clause in its entirety.
Ms M Matsemela (ANC) highlighted that the Department of Health (Department or DoH) had advised the Committee to delete the clause. She contended that such a step would create a serious crisis because it did not correlate with the object and the intention of the Bill. Finally, she asked the Department to restate the rationale behind its decision to delete the clause. She also recognised that it would be difficult for the Department to give the regulations to the Committee, because the Bill had not yet been passed.
Mr Thami Mseleku, Director General, Department of Health, explained that clause 2(7) was intended to cover quantity, and clause 2(8) was intended to cover packaging. As a result, if quantity was removed from clause 2(7), as desired by some Members, then the clause would have to be deleted in its entirety because all the remaining elements of clause 2(7) were already covered in clause 2(8).
The Chairperson referred to previous deliberations and stressed that the Committee should pass enforceable legislation. He noted that Ms R Rabinowitz (IFP) had suggested the deletion of clause 2(7), as she had reasoned that it would be impossible to prescribe what numbers could or should be sold.
Mr M Waters (DA) noted that the Department, through this legislation, intended to prevent the sale of single cigarettes. However, he argued that this would be impossible to enforce. Instead, he suggested that perhaps single cigarettes could be sold in wrappers. This would mean that consumers would still be warned about the dangers of smoking even when they bought a single cigarette. He also contended that this clause would not achieve its objective because someone wanting to stop smoking would be compelled to buy a whole packet instead buying of a single cigarette.
Ms N Nkabinde (UDM) stated that she supported the deletion of the clause.
Mr Mseleku explained that the Department wanted to retain the packaging aspect in the clause. He noted that Members were concerned about the quantities and number of units, and suggested that reference to this be deleted so that the clause only dealt with packaging.
The Chairperson emphasised that the Committee must deal with the fundamental question of enforceability. He claimed that the current legislation was not capable of being adequately enforced.
Mr S Dithebe (ANC) questioned what must be done to achieve fully the objective of prohibiting availability of cigarettes to persons under 18. He recognised that there were limitations in the implementation, but maintained that the country should do its best with whatever was available and could be enforced, as a step to the total process.
Mr Waters queried whether the scrapping of the clause would prevent the Department from developing regulations that determine what packaging single cigarettes could be sold in.
Mr Mseleku doubted that the industry would be incentivised to package single cigarettes.
Mr Mseleku acknowledged that it may help to scrap the clause because it was unlikely that it could ever be fully enforced. However, if the Committee felt that there was an incentive for self-enforcement, then the Clause could be retained, in that spirit.
The Chairperson asserted that there was no perverse intention by the tobacco industry to sell loose cigarettes and that people outside their control, mainly informal vendors, were responsible for this. He also repeated his assertion that the enforceability of legislation was generally problematic in the country.
Ms Xolisa Mdludlu, Principal State Law Adviser, clarified that the sale of loose cigarettes was taking place because there was no legislation that prevented this. However, the current Bill aimed to change this, by stipulating that no tobacco product may be sold except in a package. She maintained that parliament would never legislate if it continued to cite potential challenges and disadvantages that existed.
Ms F Mathibela (ANC) complained that there were inadequate numbers of health inspectors to monitor the enforceability of the Bill.
Mr Dithebe countered that the Committee should not fret about enforceability and that there were several good pieces of legislation that were not followed to the letter. He rationalised that society was evolving and that in future people would be inclined to adhere to the clause. Finally, he appealed to Members to retain the clause because in the end, it was the objective that they wanted to achieve.
Mr Mseleku accepted that enforceability in general was a problem, and not only in the tobacco industry. As a result, he felt that that the Department should embark on a vigorous campaign to educate the public before it criminalised their activities.
Mr Waters stated that he looked forward to the Department’s public awareness campaign.
Ms Mdludlu countered that legislation was first enacted and thereafter education of the public must take place.
Ms R Mashigo (ANC) disagreed with this opinion and felt that education should come first.
Ms Mdludlu mentioned that people were educated after the enactment of the National Credit Act, and that this was a good example of education that had worked.
The Chairperson stated that the Committee should consider addressing the elements of enforcement and public education somewhere in the Bill.
The Committee eventually agreed to remove the clause.
The Committee considered the remaining clauses 2(8), 2(9), 2(10) and 2(11) and accepted them without contestation.
Ms Matsemela mentioned that one of the companies had expressed concern that the industry would suffer if companies were compelled to disclose information regarding their products in terms of clause 3 (b)(2). It was stated that the provision violated company trade secrets and the principle of confidentiality. Lastly, she also cautioned that there was existing legislation that allowed companies not to disclose certain information to any other person.
Ms Dudley asserted that tobacco caused great harm, and as such, there should be an exception, in the public interest, to such a principle.
Mr Dithebe explained that tobacco companies were mainly concerned about the disclosure of commercial secrets, which could be exploited by their competitors. However, he felt that their interests would be sufficiently protected by the Promotion of Access to Information Act and the relevant intellectual property legislation. Lastly, he explained the context of the information that would be required in terms of this provision, which was restricted to any ingredient that would cause harm to any human being.
The Chairperson concurred with the sentiment expressed by Ms Dudley.
Finally, the Committee maintained that the tobacco industry’s concern was covered by existing legislation, and therefore they did not find it necessary to amend the particular provision.
The Chairperson articulated that the clause was primarily aimed at prohibiting the sale of products to persons under the age of 18 years. Members agreed with the majority of the provisions and did not propose any amendments to clauses 4(1), 4(2), 4(3), 4(4) and 4(6).
Ms Kalyan observed that clause 4(3) prohibited the sale or supply of confectionary or a toy that resembled or was intended to represent any tobacco product. Consequently, she examined whether there would be a phasing out period for companies that were in possession of such goods.
Mr Mseleku answered in the affirmative and confirmed that this would be catered for in the regulations.
The Chairperson noted that clause 4(5), which concerned the ban on the sale, supply and distribution of tobacco products through the post and the electronic media, had elicited complaints from Philip Morris South Africa during the public hearings. The company had recommended that the clause be amended to permit sales where proper age verifications and tax checks had been conducted. They also added that the clause would also impact on the mode of communication and correspondence between the tobacco manufacturer and its trade partners.
Mr Mseleku proposed the insertion of a new exclusionary paragraph into clause 4(5), as contained in the proposed amendments (see Proposed Amendment document) to specifically address the latter aspect raised by the company.
Mr Waters commented that he understood the Department’s intention for prohibiting the sale of tobacco products over the internet. However, he argued that the sale of products over the internet was happening throughout the world and that this would continue to be the case in the future. As a result, he reasoned that the Department would have to allow this at some stage, and should instead focus on mechanisms to prevent under 18’s from accessing tobacco products.
Ms R Mashigo (ANC) agreed that it would be difficult to limit the sale of products over the internet and stated that age verification could be conducted to address this problem.
Ms Dudley indicated that the most recent amendment to the Gambling Act concerned the tightening of internet access. She suggested that the Committee should access that piece of legislation and see how this issue was covered in there.
Ms Kalyan expressed serious concerns regarding the clause. She contended that tobacco products were not illegal and that companies should be allowed to trade through whatever means they chose. In addition, she stated that South Africans lived in a global world, where the methods of communication and trading were continuously evolving. Moreover, she voiced her support for the regulation of under 18’s but was not in favour of punishing everybody else, which was the case in the clause. Lastly, she questioned what the Department intended to achieve by being so prescriptive, when in reality many people shopped through the internet.
Mr Waters noted Ms Dudley’s comments regarding the recommendations in the Gambling Act. Hence, he suggested that the Committee obtain a copy of that legislation and return to this section of the Bill at a later stage.
Ms Matsemela concurred with the points raised by Ms Kalyan.
Ms Dudley cautioned that the Committee would have to retain the current clause to protect under 18’s if it did not find ‘something useable’ in the Gambling Act.
The Committee decided to flag the clause, and review the relevant section in the Gambling Act. It was also determined that the legal experts would assist the Committee with a formulation that would close all the loopholes and still be practical.
Mr Mseleku clarified that the proposed new paragraph 5(b) would not apply if the Committee decided that 5(a) would be limited to under 18’s.
Clauses 5 and 6
The Chairperson recited clauses 5 and 6 in their entirety. The Committee accepted all the amendments, without dissention.
Regarding the latter clause, Ms Kalyan enquired in what areas vending machines could be placed.
Mr Mseleku replied that vending machines could only be placed in areas that had already been designated as smoking areas by the Minister.
The Chairperson highlighted that the clause focused on the advertising of products at the point of sale and on vending machines.
Mr Waters reminded the Committee that Phillip Morris had proposed that each company should have restricted advertising space at point of sale, being one sign per company. Conversely, British American Tobacco opposed this and said that it would be anti-competitive and against the free market if companies were restricted to a certain amount of space at each point of sale.
Ms Mashigo suggested that each point of sale should have an advertisement from a single and different tobacco manufacturer.
Ms Dudley believed that it was incorrect to dictate to shop owners which manufacturer they should advertise. She underlined that the Committee was not worried about the competition aspect of the Bill but only that the advertising should be confined to a limited area.
Mr Mseleku replied that this discussion was not relevant now and that it should take place when the Department brought the regulations.
The Committee resolved that this matter needed to be considered further.
The Chairperson stated that the Committee would continue with its deliberations on the Bill in the following week.
The meeting was adjourned.
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