Original opinion piece: News24 – City Press
Date: 3 October 2024
The Department of Health has seen it fit to re-introduce the highly flawed Tobacco Products and Electronic Delivery Systems Control Bill back to Parliament.
It seeks to regulate the sale and advertising of tobacco products, including new-generation ones such as vapes and e-cigarettes. It aims to regulate the packaging and appearance of tobacco products and electronic delivery systems, and to make provision for the standardisation of their packaging; to provide for the regulation of standards in respect to the manufacturing and export of tobacco products and electronic systems.
But a reading of the Bill reveals a poorly conceived piece of legislation which, while purporting to reduce public harm from tobacco products and electronic delivery systems, completely misunderstands especially these new generation products and the role they can play in tobacco harm reduction. It basically seeks to throw the baby out with the bathwater.
In its presentation to the Portfolio Committee on Health, the department says the Bill is not banning tobacco and related new products, but decreasing the demand and supply to reduce harm to health. It also claims that some electronic non-nicotine delivery systems “may contain nicotine” but “during enforcement, it can be a challenge to differentiate” and therefore blanket over-regulation is required.
It also claims, without producing a shred of evidence, that: “The use (of electronic cigarettes) is gaining in popularity, particularly among the younger population (and) evidence suggest that E-cigarette users were 34% more likely to have a heart attack, 25% more likely to develop coronary artery disease and 55% more likely to suffer from depression or anxiety.”
In a bizarre piece of irony, the department notes – in relation to electronic delivery systems – that the “use of the products, the ingredients, the interaction of ingredients and their reactions in the body require understanding”. However, before that it can fully seek to understand these products better, it “deems it fit to include the regulation of newer products, such as vapes (nicotine pouches, e-liquids, e-cigarettes etc). – to protect public health”.
What a myopic reaction. Clearly this draconian Bill is being rushed through legislative processes without a deeper understanding of the products it seeks to regulate. This is dangerous lawmaking that could have an extreme impact on the economy and livelihoods without realising the complementary role that vapes and other electronic products can play in harm reduction efforts.
It also boggles the mind just why the department is so keen to ram through parliament a Bill that has undergone such inadequate public consultation, as required by law. At the portfolio committee sitting, Business Unity South Africa (BUSA) – the country’s preeminent business group, which has partnered with the government to fix the logistics crisis and end loadshedding – was critical of the inadequate public consultation process that has been undertaken to this point.
BusinessLive reported that BUSA wants to halt parliament’s work on the anti-tobacco law, arguing that the Bill first needs to be reviewed by the social partners at the National Economic Development and Labour Council (Nedlac). The business organisation specifically took issue with the extent to which the health department engaged with Nedlac before submitting it to Parliament in 2023.
“The parliamentary process should be halted,” Nedlac’s business convener, Kaizer Moyane, told the portfolio committee. “To run the process without the views of the social partners would be robbing parliament of the richness of their [expertise].”
He said the department had made only one presentation to Nedlac on the Bill, before tabling it in Parliament, and had rebuffed a request for a thorough line-by-line engagement on the legislation.
Vapor Products Association of SA (VPASA) CEO Asanda Gcoyi told Business Times last week they were disappointed that Parliament was picking up from where the last administration left off when they expected the portfolio committee to be furnished with a report on how far the processing of the bill went in the previous term. This is because public hearings had only taken place in seven of the nine provinces.
“We certainly view the public hearings as a lost opportunity for parliament to listen to communities, given the glaring shortfalls that were apparent in all seven provinces,” she said.
Why is the department so reluctant to fully undertake the most important step of any proposed legislation with a major socioeconomic impact as this one? Is it worried that the social partners – who include business and civil society – will rightfully poke holes in their flawed Bill and point out its obvious shortcomings?
As a former smoker, I’ve testified before about how vaping saved my life and can save the lives of millions of other South Africans who are finding it difficult to quit smoking overnight.
Our consumer advocacy group ‘Vaping Saved My Life’ conducted a three-month trial late last year dubbed ‘Make Mzanzi Switch’ where smokers tried vaping as a way of either stopping or reducing smoking. Over half the participants who tried vaping successfully gave up cigarettes entirely. Of those who continued to smoke, 79% reduced their cigarette consumption. In a follow-up survey conducted a few weeks after the three-month challenge period had ended, 41% of respondents were still not smoking.
Other countries are using vaping as a method to convert smokers to this much safer option and reduce tobacco harm. In 2023, the UK Government launched the first-of-its-kind scheme, “Swop to Stop” to reduce the smoking rates in the nation. The scheme will see 1 million free electronic cigarette starter kits provided with support to smokers who wish to quit via their smoking cessation services. New Zealand has also acknowledged the role these products have played in reducing harm and assisting in smoking cessation by reverting to a more pragmatic policy approach and ensuring the correct message is received via the Health Ministry website.
And it’s not just this Bill that could scupper efforts to encourage vaping as a less harmful substitute to smoking. The finance minister announced in the 2022 budget speech that excise duty on vaporised tobacco products would be introduced in June 2023. Nicotine and nicotine-substitute solutions in vaping products are included in the tax net with a flat excise duty rate of R3.06 per millilitre. This saw e-liquid prices inflate from 5.8% to 217%, depending on the volume and retail price. I said when this was announced that many of those who vape, having switched from smoking to this safer alternative, are now having to pay far more for the privilege and might be forced to revert to smoking as a cheaper option. These are the many unintended consequences of bad policymaking. Government needs to go back to the drawing board when it comes to the Tobacco Products and Electronic Delivery Systems Control Bill. Lack of proper public consultation and failure to fully understand the complementary harm reduction role that vaping can play, it cannot be allowed to pass as is.
