Submission on the Tobacco Products Control Amendment Act (B24-2006) to the Parliamentary Portfolio Committee on Health

Submission on the Tobacco Products Control Amendment Bill (B24B - 2006) to the

Select Committee on Social Services

(National Council of Provinces)

British American Tobacco South Africa

17 August 2007

Introduction

British American Tobacco South Africa (BAT South Africa) wishes to thank the NCOP Select Committee on Social Services for the opportunity to present our comments on the Tobacco Products Control Amendment Bill [B24B - 2006] (the Bill). We believe that health-risk products such as tobacco need to be regulated and we seek to engage with government and other regulatory bodies to implement sensible regulation that can tackle real issues in workable ways.

Our approach to tobacco regulation

South Africa is at the forefront of tobacco regulation from a global perspective. As a responsible corporate citizen, BAT South Africa is particularly proud that South Africa is a world leader in the regulation of tobacco harm reduction with a broad based approach. The first steps in achieving this goal have already been taken.

The controversy surrounding tobacco products means that there is constant pressure for increased regulation of tobacco. One-sided, emotional and untested proposals are often put forward, and the views of those who will be regulated are in many instances ignored. Our experience is that local conditions require local solutions and ones that address practicality rather than ideology.

BAT South Africa supports sensible and enforceable regulation and in that regard we applaud the commitment expressed by the NCOP, the Portfolio Committee on Health and the Department of Health to open dialogue with stakeholders, including the tobacco industry.

The only way to avoid the risks of smoking is not to smoke and the best way to reduce the risks of smoking is to quit. However it is submitted that responsible law-makers have a constitutional and general duty of care to ensure that any product that could potentially reduce the harm associated with the use of tobacco products, be fully investigated, communicated and made available. Therefore, the regulation of snus and other reduced risk tobacco products should be separately and substantially different from regulation of conventional smoking tobacco products.

Our Submission

In principle we understand and support the intention of the Bill. Many stakeholders believe that the existing law is sufficiently comprehensive, with only minor regulatory amendments required to manage the tobacco control environment in South Africa. This would also encompass the requirements of the WHO’s Framework Convention on Tobacco Control (FCTC).

However, there are four issues contained in this Bill that we respectfully submit require reconsideration and revision.

1. Clause 6A : Exemption of certain reduced harm tobacco products

There are many facets to reducing the risk to public health associated with tobacco use; amongst others these include reducing the number of smokers, in particular preventing underage consumption and limiting public exposure to environmental tobacco smoke. While abstinence is the best alternative to avoid the risk associated with tobacco use, a more pragmatic option is to thoroughly explore less harmful alternatives for those who do not wish to or cannot quit smoking.

Globally, there is a significant and growing body of evidence indicating that smokeless tobacco products such as Swedish-style snus, properly regulated, have the potential to lay a foundation for reducing tobacco-related harm. Many scientific papers have been published advocating this position, including some from the following eminent bodies:

§ Action on Smoking and Health (ASH) (www.ash.org.uk/html/adn/adn_1708.php)

§ The Royal College of Physicians (www.rcplondon.ac.uk/college/statements/response_choosehealth_tobacco.asp )

§ WHO’s International Agency for Research on Cancer (http://monographs.iarc.fr/ENG/Preamble/Comments.pdf)

§ Tobacco Harm Reduction Unit, University of Louisville, USA (www.louisville.edu/bucksforbrains/bios/rodu.htm)

§ American Council on Science and Health in New York (ACSH) (www.acsh.org/publications/pubID.1403/pub_detail.asp)

§ The British medical journal ‘The Lancet’ (www.thelancet.com) – see Appendix 1

During the course of the National Assembly Portfolio Committee on Health public hearings on the Bill in January 2007, there was consensus between the tobacco industry and the Committee on three issues:

§ that snus is a tobacco product;

§ that snus is not harmless; and

§ that snus is less harmful than cigarettes and some other tobacco products.

Given the above consensus, the Portfolio Committee on Health demonstrated judiciousness by making provision for the exemption of harm reduced tobacco products in Section 6A of the Bill which reads as follows:

“The Minister may by notice in the Gazette exempt any tobacco product from a provision of this Act on such conditions as the Minister may determine in the notice, provided that it is in the public interest for the particular product to be so exempted.”

We are of the view that the exemption as it stands is too wide and does not address the specific reason for the inclusion of the exemption. This was confirmed during the NCOP deliberations of the Bill when it was apparent that there is no clarity from the Department of Health regarding the purpose of the proposed clause 6A; it was in fact erroneously presented to the NCOP as referring to ‘medicinal’ products rather than snus or any other tobacco product proven to be less harmful.

In order for the Department of Health to be able to distinguish between snus in particular and other tobacco products, we propose that the Minster be given the power to specifically exempt snus from certain provisions of the Act if the exemption is generally in the public interest and more particularly, on the grounds that snus is less harmful than some other tobacco products.

We therefore propose that the exemption clause be revised as follows to include snus in particular as a reduced harm product:

“The Minister may by notice in the Gazette exempt any tobacco product such as, but not limited to, snus from a provision of this Act on such conditions as the Minister may determine in the notice, provided that it is in the public interest for the particular product to be so exempted.”

If the proposed section 6A is amended as above, we recommend the inclusion of a definition of snus as follows:

“Snus” means Swedish-style pasteurised, moist, ground tobacco for oral use presented either loose or in sachet portions consumed by absorption through the oral mucous membrane”.

The inclusion of snus into the proposed exemption provision such as this would give the Minister the power to implement separate and more appropriate regulations for this tobacco product.

2. Sections 3 and 6 - The Minister of Health’s regulatory powers

In terms of section 6(1)(e) of the existing Act the Minister of Health is given the power to make regulations regarding “any other matter required or permitted to be prescribed in terms of a provision of this Act to achieve the objects of the Act”. This confers upon the Department a generic power that does not require amendment or amplification.

However the Bill seeks to go beyond those powers referred to above. For example, the Minister is given the power to make regulations regarding:

2.1. The standards for manufacturing and export of tobacco products [section 3A]. The Bill seeks to impose standards on sovereign countries, which could be in contravention of existing trade agreements. The effect of this section is to unilaterally impose South African standards on foreign countries which may themselves have elected not to impose such standards. An example of this could be regulating the ignition propensity of cigarettes [as referred to on page 4 in paragraph 4 (d) (iii) of the Bill and also dealt with in 2.2 of this submission]. Many countries have deliberately delayed any implementation of this standard in the absence of evidence that this product modification has had any positive impact on community safety. In addition, the proposed amendment to section 3A will potentially have a negative impact on the levels of cigarette exports from South Africa, thereby also undermining Government’s objective of growing and expanding our country's capacity in manufacturing and exporting as well as generating employment and foreign exchange.

2.2. The ignition propensity of cigarettes [paragraph 4(d)(iii) of the Bill]. This section refers to the proposed regulation of so-called ‘fire-safe’ cigarettes. While BAT South Africa is supportive of measures designed to reduce the incidence of fires caused by the careless disposal of cigarettes, we contend that product modification as a means of achieving that goal is complex and requires careful consideration. We respectfully question the inclusion of this clause in the Bill and suggest that this is an area of competence that the South African Bureau of Standards should address and not the Department of Health.

2.3. The disclosure of, amongst others, marketing expenditure to the Minister and the public [par 4(f) of the Bill]. The Bill seeks to force tobacco manufacturers to publicly disclose proprietary and confidential information which manufacturers are entitled to protect. We have stated before that we support the government’s objective to reduce the harmful effects of tobacco use. It is in this context that, in our view, the provisions under this clause which seek to compel tobacco manufacturers to disclose confidential and competitively sensitive information, not only to the Minister but also to the public at large, should be reviewed. We submit it is a clause which is not aligned to either support or achieve the primary health objective of the government and should therefore be removed.

Indeed, unless required to do so in terms of legislation governing public companies, no purpose at all is served in singling out and forcing privately owned tobacco companies to place their confidential information in the public domain.

In circumstances where the public need to know, and where they are entitled to such information, the Promotion of Access to Information Act 20 of 2000 is a sufficient channel for the public to obtain such information. BAT South Africa already voluntarily discloses tobacco related information that is pertinent for health reasons, such as the ingredients used in the manufacture of our products.

We respectfully submit that given the proposed new regulatory powers to be conferred upon the Minister in sections 3 and 6 if the Bill is enacted, material changes could be made to the system of tobacco control with minimal opportunity for public participation.

In conclusion, we believe that if the changes we propose above are approved, the end result will be a better, more coherent and more workable enactment, to the benefit of all South Africans.