South Africa set to regulate tobacco and e-cigarettes despite industry pressure

In South Africa, the law, which is about to be adopted, provides for a significant strengthening of smoke-free areas and penalties for violations. Among other measures in this law, the sale of tobacco to minors will be more repressed, tobacco stalls will be removed, standardized packaging and all forms of advertising will be prohibited. The legislation on e-cigarettes is largely aligned with that of tobacco products and an increase in their taxation is planned.

Presented to the South African Parliament on 9 December 2022, the Tobacco Products Control and Electronic Delivery Systems Act[1] is currently being studied by the National Assembly and should be adopted soon. In preparation since 2018 and postponed until 2020, this law includes numerous provisions, applicable to traditional tobacco products, heated tobacco and electronic cigarettes. This is a first for electronic cigarettes, as these products have so far been very little regulated in this country.

Tightening of rules and sanctions on tobacco consumption and sale

The new law significantly extends the ban on smoking in public enclosed spaces, as well as in outdoor areas. To this end, employers are specifically required to ensure smoke-free workplaces, including for home employment. Employees will be able to exercise a kind of right of withdrawal if they are confronted with passive smoking in their workplace. Smoking in a vehicle or private place is also prohibited when a child or a non-smoker is present. Penalties are increased in the event of infringement of these bans, ranging from a fine to three months in prison for smokers and up to ten years in prison for employers.[2].

In terms of sales, the penalties are also toughened, with up to twenty years in prison for selling tobacco to minors. Stalls selling tobacco, vaping or heated tobacco products will now be banned in places of sale. The sale and purchase of tobacco and vaping products by post, on the Internet or by other electronic means (social networks or others) are now prohibited. Standardised neutral packaging should soon be proposed for traditional tobacco products, this provision can then be applied to vaping and heated tobacco products. Health warnings are redefined and must cover 65 % of the surface area of the packaging. No form of advertising is tolerated for tobacco and vaping products, the former exceptions (media, sponsorship) being removed. Finally, confectionery resembling tobacco products is now banned, their influence in terms of marketing directed at children having already been denounced.

Vaping industry calls for delay in tax bill

In parallel with this law, whose particularity is to offer a regulated framework for electronic cigarettes, a draft revision of various taxes proposes to introduce excise duties for these nicotine products. A tax is therefore planned on e-liquids, depending on the volume of product and the nicotine concentration. This new tax, which was to be applied on 1^er January 2023, should ultimately not come into force until January 1^er June 2023, to give the South African Revenue Service (SARS) and vendors time to adjust their pricing system. A product tracing system for e-cigarettes is also being considered to prevent smuggling of these products.

Through their loyal parliamentarians and the media, the tobacco and vaping industry have called for an extension of this deadline by one year, until 1^er January 2024, on the grounds that this increase could promote the black market[3]The other argument put forward, particularly by vaping groups who relay the messages from manufacturers, is that electronic cigarettes should benefit from reduced taxation given that they would allow " save " the lives of smokers who have quit smoking through this means. The leader of "Vaping saved my life", a member organization of the World Vapers' Alliance (WVA, funded by British American Tobacco[4]) here takes up the rhetoric of the cigarette companies according to which restricting access to electronic cigarettes would be an attack on human rights[5].

South African authorities have so far refused to extend the deadline, dismissing the harm reduction argument by arguing that e-cigarettes are not safe, their long-term effects are still unknown, their ability to help people quit smoking has yet to be proven, and none of them have been registered as a substitute treatment.[6]. The authorities have instead reaffirmed the guidelines of the World Health Organization (WHO), and opted for a more proven strategy of helping smokers, combining nicotine replacement therapy (NRT) and tobacco consultations. South Africa, which has been subjected to intense pressures on the part of the tobacco and vaping industries, therefore seems to be vigorously resuming the fight against smoking.

To learn more about tobacco industry interference in South Africa, see our decryption.

Keywords: South Africa, regulation, vaping, taxation, human rights

M.F.

[1] Tobacco products and electronic delivery systems control bill, Parliament of the Republic of South Africa.

[2] New smoking laws for South Africa are coming – you'll soon be fined or jailed for smoking in these areas, BusinessTech, published December 13, 2022, accessed February 21, 2023.

[3] Kahn T, Vaping industry urges Treasury to delay excise tax on its products, BusinessDay, published February 20, 2023, accessed February 21, 2023.

[4] World Vapers' Alliance, Tobacco Tactics, published November 4, 2022, accessed February 21, 2023.

[5] Yeo K, The tobacco bill violates human rights, Mail&Guardian, published January 28, 2023, accessed February 21, 2023.

[6] Final Response Document on the 2022 Draft Rates and Monetary Amounts and Amendment of Revenue Laws Bill, 2022 Draft Taxation Laws Amendment Bill and 2022 Draft Tax Administration Laws Amendment Bill, National Treasury/SARS.