No public debate ‘is smoking laws by decree’

THERE will be no public debate or hearings on the proposed changes to the tobacco laws and it will now be up to the health minister to decide which regulations, if any, to put in place. Submissions on the proposed changes to tobacco legislation closed on Friday, and a few stakeholders have sounded the alarm on the possible effects of the envisaged regulations. If passed in their existing form, the regulations will tighten restrictions on smoking in all public areas, including covered walkways, service areas, inside bars, on beaches and in restaurants — leaving little more than private homes and cars where smoking will be legal. In its submission the Township Liquor Industry Association says the regulations are more stringent than laws in the past.

"It was much easier to operate in apartheid years. We invite the health minister to come and see how impossible the regulations will be and request that they consult with us or exempt us from the regulations." Head of Free Market Foundation of Southern Africa Leon Louw says the method used is not how laws should be made in a democracy. "It is now a discretionary matter; we did not fight for freedom during the struggle for law by decree. We fought to prevent exactly this, to prevent secret laws being made in Pretoria by the government." The foundation made a submission to the health ministry along with other stakeholders, including British American Tobacco (BAT). Itumeleng Langeni, head of corporate communications at BAT SA, says while interested parties have been given three months to submit comment on the draft regulations, the company suspects many stakeholders are "unaware of the regulations and their impact".

The Department of Health published the draft regulations to the Tobacco Products Control Act on March 30 and invited the public to comment until the end of last month. The department could not be reached yesterday to comment on the submissions. It is also unclear when the regulations will be passed. However, in a statement a few weeks ago, the department reiterated its stance that it would not be "soft" on tobacco-control legislation. "The department is of a firm view that the use of tobacco products is one of the leading causes of noncommunicable diseases in our country and many parts of the world." It said it had continued with its programme of tightening legislation around the use of tobacco in SA, in line with its mandate of "reducing the burden of diseases (caused by tobacco smoke, among others) and ensuring that members of the public are protected from the harmful effects of tobacco smoke".

In its submission, BAT says the new regulations should be practical and enforceable in order to effect the objective it endeavours to deliver. "The question then arises as to the need to disregard the very significant expenditure undertaken by the private sector in order to comply," it says. The act asserts that smoking is to be permitted in prescribed portions of public places. The act states that "the minister may permit smoking in the prescribed portion of a public place", a statement which clearly intends to ensure that smoking in public places would remain permissible in terms of the act, the company says.

It wants Parliament to make a decision, saying a prohibition of smoking in public places is inconsistent with the act and any change will have to be sanctioned by Parliament. The failure to provide for portions of public places in which smoking is permitted is contrary to the framework of the act, BAT says. The Free Market Foundation, in its submission, says the regulations pose constitutional issues. By restricting smoking to designated outdoor smoking areas, the government breaches the right to have one’s dignity respected, it argues.

The proposed regulations will allow smoking only in designated outdoor areas, which will be devoid of pleasant or agreeable surroundings or amenities, even if the designated smoking area is in a public place of entertainment, it says. "This will have a symbolic stigmatising effect on smokers, breaching their fundamental right to dignity. The proposed regulations will for that reason be invalid, as the Constitutional Court ruled in relation to anti-sodomy legislation." As for the effect on businesses, owners of such businesses, which have put up structures to accommodate smokers, claim much will be lost. However, anti-smoking bodies claim smoke-free work environments help to increase productivity and encourage workers who want to stop smoking to quit.