Prohibition is a hard habit to break

The proposed Tobacco Bill will affect businesses, employment, the economy, public health and individual freedoms
Original opinion piece: Business Day
Date: 21 July 2023 – 10:21

How should governments best protect consumers from their own, potentially risky choices? In SA, the answer increasingly leans towards prohibiting or severely restricting access to products deemed to be a risk to human health, but this approach is not without its own risks.

The most obvious of these is the well-established principle that prohibition can have the opposite of its intended effect — fuelling an explosion of illicit trade in the banned substance as it did in the US in the early 20th century with the prohibition of alcohol and in SA during the Covid-19 bans on alcohol and tobacco sales.

This points to a reality that the prohibitionist approach fails to account for — that in any human population, there will be significant numbers of people who either refuse to or cannot comply with the dictates of government.

This proved to be the case even with the seemingly logical imposition of lockdowns during the Covid-19 pandemic. While initially intended to slow the spread of the virus so that health systems could better manage patient loads, in SA, full compliance was almost impossible in contexts where people live in crowded shacks with shared public ablutions, while the minibus taxi industry quickly won concessions that rendered the restrictions on other modes of transport largely meaningless.

Similarly, during the height of the HIV/Aids pandemic, the knee-jerk response was to stigmatise sufferers and admonish against promiscuity. There was strong resistance to the idea of promoting condom use and sex education in schools, with the argument being that this would encourage teen sex.

In the end, a mass public education campaign on how to practise safer sex, coupled with the rollout of antiretroviral therapy proved far more effective in beating back the Aids pandemic than attempts to impose abstinence.

Today, the South African government is again showing its predilection for controlling citizen behaviour, rather than arming them with the information they need to make informed choices, and the likely results are as predictable as ever.

The proposed Tobacco Products & Electronic Delivery Systems Control Bill, which was presented to Parliament’s Portfolio Committee on Health on the 31st of May, not only aims to severely restrict access to cigarettes, it also intends to treat products that, based on the available science, have been estimated to be around 95% less harmful, exactly the same as cigarettes.

Just as concerning, it will effectively prohibit sharing information with consumers supporting the use of these products as less risky alternatives to smoking, though this information could save their lives.

Health lobby

This is not a position conjured up by the tobacco or vaping industry, as many in the local health lobby would have us believe. It is a view expressed by independent bodies like the UK’s Royal College of Physicians, Cancer Research UK, Public Health England, Public Health Canada, New Zealand ministry of health, and the US National Academies of Science, Engineering and Medicine. They have all publicly supported the use of vaping devices as a harm-reduced alternative to smoking.

The US Federal Drug Administration has also declared that a variety of new categories of products, including e-cigarettes, are appropriate for the protection of public health.

Backed by overwhelming evidence, proving the efficacy of nicotine vapes for smoking cessation, the UK health minister announced the first of its kind “Swap to Stop” scheme in April 2023. The scheme will see 1-million smokers provided with a vape starter kit alongside behavioural support to help them quit the habit.

It is true that not all health experts agree with this position, but is the appropriate scientific response to this debate to ban discussion of one side of it? Unfortunately, this stance has been evident in the 5 years and 2 months since the bill was first announced in May 2018. Contrary to the announcement made when the bill was presented to the cabinet, stakeholders including consumers of vaping products were only afforded two 2-hour sessions in May 2021 to engage in the process post the initial written submissions. This is not “extensive” by any stretch of the imagination, and it is unclear whether the department of health had even engaged with counterparts in the UK, Canada or New Zealand on the matter, nor explored outside the dictate of the World Health Organisation.

As it stands the Tobacco Bill runs counter to the spirit of the Consumer Protection Act, which advocates for consumers to be protected, not by withholding information, but by sharing accurate information on which they can base informed decisions.

As with the HIV/Aids pandemic, throwing a veil of silence over the subject is highly unlikely to result in people, in this case smokers, changing their behaviour. As with the promotion of safer sex, advocating for less harmful alternatives to smoking is not about throwing open the doors for more people to take up the habit, it is simply a recognition of the fact that there are 12.7- million smokers in SA, many of whom cannot simply quit, and who will die prematurely if they don’t find a way out of smoking.


Giving smokers all the information about the potential benefits, as well as the risks, of alternatives to combustible cigarettes offers such a way out.

The bill seeks to not only regulate and restrict all aspects of manufacturing, packaging, selling and consumption but to implement penalties ranging from three months to 20 years of imprisonment. Caught vaping/smoking in your own home when it is used for any commercial activity including domestic employment could see you in prison for five years. A tobacco or vaping product left on a counter in a retail outlet fetches a 10-year prison sentence. Selling a product to anybody under the age of 18 will be met with 20 years of jail time.

In essence, the bill reads more like a prohibitionist manifesto, going as far as providing the minister of health the authority to enact further regulations without delay if he/she deems it in the interest of the public. Ultimately creating an environment where no legitimate business could operate, gift wrapping the sector for the black market, which will force consumers to engage in illegal activities, relinquishing all control, standards and protection.

Instead, the government and now parliament should understand the benefits of a harm reduction approach which has been dramatically vindicated by the example of Sweden, which has officially achieved a smoking rate of 5.6% and, by all reports, is on track to become the first country in the developed world to become smoke-free.

This is not because it has harsher antismoking regulations than its EU peers who have lagged far behind it in reducing smoking, but because Swedes have taken up nicotine products that don’t burn tobacco, including vaping and snus.

The result: Sweden now has one of the lowest smoking-related cancer and death rates in the world.

The same opportunity to save millions of lives is there for SA to take. But it will be lost if, instead of learning from history, the government takes the path of prohibition once again and ignores the approach it ultimately used to turn the tide on Aids harm reduction.

Irrespective of our views on smoking and vaping, South Africans need to understand that this bill has far-reaching implications which will impact businesses, employment, the economy, public health and individual freedoms, effectively fostering further government overreach.