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Tobacco

37 million military personnel lost their lives, in war, during the 20th Century.1
81 million people lost their lives due to political oppression, or so-called ‘genocide’.2
58 million people lost their lives due to famine.3
100 million deaths were caused by tobacco in the 20th Century.4
Go figure.

That is why we have the Tobacco Products Control Act 1993,5 which falls under the authority of the Minister of Health. The Act prohibits smoking in specified places, and regulates the sale and advertising of tobacco products. The Act provides that a contravention of any regulation made in terms of the Act, an offence.6 All of the regulations are referenced in the sections which follow, but not all their details.

A. Smoking in public places and work places

First, various definitions in the Act7 must be borne in mind:

  1. It is a criminal offence to smoke any tobacco product in a public place.9

  2. It is an offence to smoke any tobacco product in a private dwelling if that private dwelling is used for any commercial childcare activity, or for schooling or tutoring.10

  3. The owner, or person in control of any public place, or a motor vehicle in which a child under the age of 12 years is present (or an outdoor area as prescribed by the Minister11) commits an offence if he fails to ensure that no person smokes in that place or area.12

  4. The owner, or person in control of any public place, or motor vehicle, and the employer in respect of any work place, commits an offence if he fails to display the prescribed signs, and make the prescribed public announcements13 informing people about prohibitions on smoking.14

  5. The owner or person in control of such a place, motor vehicle, or outdoor area, and the employer in respect of any work place, commits an offence if he fails to ensure that no person under the age of 18 years is present, including in any portion of the workplace or area where smoking is permitted.15

  6. The Minister may permit smoking in certain portions of a public place,16 and can prescribe conditions.17 It is an offence not to comply with such conditions.18

  7. An employer commits a criminal offence if he fails to ensure that:

    • employees can object to smoking in the workplace without retaliation of any kind;
    • employees who do not want to be exposed to tobacco smoke in the workplace are not so exposed;
    • it is not a condition of employment, expressly or implied, that any employee is required to work in any portion of the workplace where smoking is permitted; and
    • employees are not required to sign any indemnity for working in any portion of the workplace where smoking is permitted.19

B. Sale of tobacco products

  1. It is a crime for a wholesaler to display tobacco products at his place of business if he does not comply with the prescribed regulations.20

  2. A retailer must display tobacco products in such a way that no person is able to handle the product before paying for it, and commits a crime if he does not do so.21

  3. It is a crime if a retailer fails to display a notice in the prescribed manner, and containing the prescribed information regarding any tobacco product available at his place of business.22

  4. It is an offence to offer tobacco products for sale (or sell them) at retail unless the prescribed notice is displayed.23

  5. It is a crime to sell or supply any tobacco product to any person under the age of 18 years.24

  6. The owner or person in charge of any business commits an offence if he does not ensure that no person under the age of 18 years in his employ, or under his control sells any tobacco product on the business premises.25

  7. It is an offence to sell or supply any confectionary or toy that resembles, or is intended to represent any tobacco product.26

  8. It is a crime to sell tobacco products in any health establishment2728 as contemplated in the National Health Act, including any pharmacy.29

  9. It is also a crime to sell tobacco products in any place where a person under the age of 18 years receives education or training.30

  10. If anyone sells, supplies or distributes any tobacco product through the postal services, the internet or any other electronic media, he will commit a crime.31

  11. If anyone buys any tobacco product through the postal services, the internet or any other electronic media he commits a crime.32

C. Vending machines, discounts and ‘freebies’

  1. It is an offence to put a vending machine containing tobacco products in any public place, other than as specified by the Minister as a permitted smoking area.3334

  2. Any person who offers tobacco products for sale by way of a vending machine shall not use that machine for the sale of anything else and commits an offence if he does.35

  3. Any person who offers any tobacco product for sale by way of a vending machine shall display a notice on the vending machine (in the prescribed manner, containing the prescribed information) regarding the products available in the machine.36

  4. Any person responsible for, or in control of the premises in which any vending machine is kept must ensure that no person under the age of 18 years makes use of any such machine, and commits an offence if he fails to do so.37

  5. The Director-General: Health may give notice to the owner of a vending machine (or the person in control thereof) either to remove it from the premises or to take certain specified measures to prevent the machine being used by persons under the age of 18 years. It will be an offence not to comply with such a directive.3839

  6. It is an offence for any person to distribute any tobacco product; or supply any tobacco product to any person for subsequent distribution for free, or at a reduced price other than a normal trade discount.40

  7. Any person who offers any gift, cash rebate, or right to participate in or attend any contest, lottery, game, or event as consideration for the purchase of a tobacco product, commits an offence.41

  8. The same applies to offering any gift (etc.) in exchange for the furnishing of evidence of such a purchase, or the confirmation of use of a tobacco product.42

D. Advertising and sponsorship

A few more definitions:

  1. It is an offence to advertise or promote a tobacco product through any direct or indirect means, and by any method.49

  2. An offence is committed if a commercial communication between a tobacco manufacturer or importer and its trade or business partners, or employees or shareholders, contains any information other than:
    • factual information about the tobacco product;
    • its characteristics;
    • its availability or price;
    • pictures of the tobacco products, the component parts and the packaging.50
  3. If any manufacturer or dealer organises or promotes any organised activity (as defined) in the Republic, he commits an offence.51

  4. If any manufacturer or dealer makes any financial contribution to any organised activity in the Republic, he commits an offence.52

  5. If any manufacturer or dealer makes a financial contribution to any person in respect of the organisation or promotion of any organised activity in the Republic by that person; or the participation, by that person, in any organised activity in the Republic, he commits an offence.53

E. Packaging and labelling

  1. It is a crime to package or label a tobacco product in any way that is false, misleading, deceptive or likely to create any erroneous, deceptive or misleading impression.54

  2. It is a crime to package or label a tobacco product in any way that directly or indirectly creates the impression that it is less harmful than another tobacco product.55

  3. It is a criminal offence to manufacture, import, or sell a tobacco product if it is not packaged in the prescribed manner.5657

  4. It is a criminal offence to manufacture, import, or sell a tobacco product in a package or containing a label, that contains false or misleading information or that is calculated to deceive the user of such product.58

F. Standards of manufacture

  1. It is an offence to manufacture, or import, any tobacco product unless it complies with the prescribed standards.5960

  2. Every manufacturer and importer of a tobacco product must provide such information about the product and its emissions to the Minister and to the public, as may be prescribed.61 He commits an offence by not doing so.62

  3. It is an offence to export a tobacco product from the Republic unless it meets the product and testing standards of the country of final destination.6364

  1. Mathew White — ‘Historical Atlas of the 20th Century’, quoted at http://necrometrics.com/warstats.htm ‘Worldwide Statistics of Casulties, Massacres, Disasters and Atrocities’. It appears that the figures are not without controversy. 

  2. Ibid. 

  3. Ibid. 

  4. www.who.int/mediacentre/factsheet. WHO is the World Health Organisation, a body of the United Nations. Of the 4 000 chemicals in tobacco smoke, 250 are known to be harmful, and more than 50 are known to cause cancer – loc cit. 

  5. As amended; the latest amendment effected by Act 63 of 2008. 

  6. See section 7(2). 

  7. See section 1 of the Act for the definitions. 

  8. Excluded from this is (a) a private dwelling and (b) an area specifically designated by the employer as a smoking area and which complies with the prescribed requirements – see section 1 of the Act. See regulation 2(h) promulgated on 29 September 2000, under Government Notice R975 in Government Gazette 21610, for the prescribed requirements. 

  9. Except as permitted by regulation – See reference 14. The Act also says that it is an offence to smoke in any area within a prescribed distance from a window of, ventilation inlet of, doorway to or entrance into a public place, but no such distance has been prescribed. It is also an offence to smoke any tobacco product in any outdoor public place where persons are likely to congregate within close proximity of one another or where smoking may pose a fire or other hazard, if prohibited by the Minister, but there has been yet no such prohibition. 

  10. Section 2(1)(c) read with section 7(4). 

  11. No such area is, as yet, prescribed. 

  12. Section 2(2) read with section 7(1) of the Act. 

  13. It seems that no such signage or announcements have, pointedly, yet been prescribed. However, regulation 3 of the Government Notice R975 establishes notices and signage which the proprietor of a public place must erect when he designates it as a smoking area. Perhaps these will apply, although it is not clear. 

  14. Section 2(4) read with section 7(1) of the Act. 

  15. Section 2(6) read with section 7(1) of the Act. 

  16. Government Notice R975 published the regulations which permit smoking in the following public places; in most respects, conditions attach. (a) Smoking establishments – this is an establishment where the primary business is to sell tobacco products to the general public for consumption on or off the premises, and to provide for related business activities; (b) bars, pubs, taverns or any other public place where the primary business is the sale of alcohol beverages; (c) night clubs, casinos or any other public place where the primary business is the provision of entertainment; (d) restaurants; (e) hotels, guest houses, bed and breakfast places, game lodges and other places where accommodation is offered for sale; (f) passenger ships registered in the Republic; (g) passenger trains operating in the Republic; (h) work places; (i) airports. 

  17. See regulation 2 for the references. 

  18. Section 2(1)(b) read with section 7(1) of the Act. 

  19. Section 2(5) read with section 7(2) of the Act. 

  20. See section 3(8) read with section 7(2). See regulation 3 promulgated in Government Notice R976 published in Government Gazette 21610 of 29 September 2000 for the signage that is required. 

  21. Section 3(9)(b) read with section 7(2). This section also stipulates that tobacco products must be displayed in the prescribed manner, but it appears that no regulations are yet promulgated in this regard. 

  22. See Section 3(9)9 read with 7(2). See regulation 3 of the Government Notice R976 published in Government Gazette 21610 on 29 September 2000 for the Notice. 

  23. Section 3(10) read with section 7(2). 

  24. Section 4(1) read with section 7(2). 

  25. Section 4(2) read with section 7(2). 

  26. Section 4(3) read with section 7(2). 

  27. This means a public or private institution, facility, building or place that is operated or designed to provide, whether for profit or not, inpatient or outpatient treatment, diagnostic or therapeutic interventions, nursing, rehabilitative, palliative, convalescent, preventative or other health services. 

  28. See Section 1 of the National Health Act 61 of 2003. 

  29. Section 4(4)(a) read with section 7(2). 

  30. Section 4(4)(b) read with section 7(2). 

  31. Section 4(5)(a) read with section 7(2). 

  32. Section 4(5)(a) read with section 7(2). 

  33. See footnote 10 above. 

  34. Section 5(1) read with section 7(2), and section 2(1)(b). 

  35. Section 5(1A)a read with section 7(2). 

  36. Section 5(1A)b read with section 7(2). 

  37. Section 5(2) read with section 7(2). 

  38. This is a generous interpretation, because the relevant sections in the Act do not penalize this in such direct terms. 

  39. Section 3(2)(a) read with 7(3). 

  40. Section 3(2)(b) read with 7(3). 

  41. Section 3(2)(c) read with 7(3). 

  42. Section 3(6) read with section 7(3). 

  43. ‘Product placement’ is the depiction of, or reference to, a tobacco product or brand element in a broadcast programme, film, video recording, telecast or other electronic medium for which the producer, or any other person associated with the broadcast programme, film, video recording, telecast or other electronic medium, receives payment in cash or otherwise. 

  44. Section 1 of the Act. 

  45. The Act refers to a ‘tobacco product brand element’. This is the brand name, trade mark, trade name, distinguishing guise, logo, graphic arrangement, design, slogan, symbol, motto, selling message, print, typeface, recognisable colour or pattern of colours, or any other symbol of product identification, that is likely to be taken as or confused with any brand of tobacco product designed to promote tobacco use. I refer to this, compendiously, as ‘tobacco brand’. 

  46. Section 1 of the Act. 

  47. Section 1 of the Act. 

  48. Section 1 of the Act. 

  49. Section 3(1)(a); section 3(1) read with 7(3). 

  50. Section 3(1)(b) read with section 7(3). 

  51. Section 3(2)(a) read with section 7(3). 

  52. Section 3(2)(b) read with section 7(3). 

  53. Section 3(2)(c) read with section 7(3). 

  54. Section 3(6) read with section 7(3). 

  55. Section 3(6) read with section 7(3). 

  56. See the regulations promulgated under Government Notice 2063 published in Government Gazette 1611 on 2 December 1994 (as amended by Government Notice R1148 published in Government Gazette 16588 on 4 August 1995). 

  57. Section 3(7)(a) read with 7(3). 

  58. Section 3(7) read with section 7(3). 

  59. The standards promulgated thus far are two-fold, but they all relate only to cigarettes. First, they govern the amount of nicotine in and the tar yield from cigarettes – See Regulations promulgated under Government Gazette Notice R974 published in Government Gazette 21610 of 29 September 2000. Second, there are comprehensive regulations governing the standards of RIP (‘reduced ignition propensity’) cigarettes. RIP cigarettes are designed to self-extinguish when left unpuffed. Ordinary cigarettes have a high propensity to start fires, and smoking causes an estimated 10% of all fire deaths globally, with the fire costs reaching US$272 billion per annum. See www.who.int – ‘Fact Sheet on Reduced Ignition Propensity (RIP) Cigarettes’. The Regulations were promulgated under Government Notice R429, published in Government Gazette 34302 of 16 May 2011. They provide, amongst other things, that after 18 November 2012 (i.e. 18 months later) all cigarettes imported or sold have to be RIP cigarettes – see regulation 20. 

  60. Section 3A(1) read with section 7(3). 

  61. Other than in respect of RIP cigarettes (see regulations in Government Notice R429) there is nothing prescribed in this regard. 

  62. Section 3A(2) read with section 7(3). 

  63. If no such standards exist in the country of final destination, section 3A of the Act applies. 

  64. Section 3A(3) read with section 7(3).