COMMENT ON SOME ASPECTS OF THE TOBACCO PRODUCTS CONTROL AMENDMENT BILL
The AHI fully acknowledges the right of the Minister of Health and Parliament to legislate on tobacco control. However it makes this submission in order to voice its concern about the way the proposed bill impacts on basic issues of social and economic policy, as well as its direct and indirect cost implications.
Concerns about enforceability and disrespect for the law
Respect for the law and a culture of compliance therewith, are crucial elements in any civilised society. General lawlessness and disrespect for the law has become endemic to this country, and the efforts by the Government to stem this trend do not seem to bear early fruit. This bill will add to the current climate of disrespect for the law. It criminalises a whole range of behaviour which until now has been perfectly legal. The all-encompassing definition of "advertising", the fact that not only tobacco marketers but "any person" may commit the crime of advertising, the very vague definition of a "public place" etc, expose a large number of people to possible criminal prosecution. To adopt new criminal law which is clearly beyond the capacity of the police, the criminal courts and the penitentiary system to deal with consistently or credibly, is in excusably naive and harmful.
A quick study of the bill shows that the following people are at risk:
Tobacco marketers, wholesalers and retailers, restaurant owners, employers, employees, newspaper editors, people in possession of tobacco-related items, non-tobacco people using what may be deemed tobacco trade marks, companies and products having names similar to tobacco trade marks, sporting and cultural bodies, advertising agencies, vending machine operators, direct marketers, street vendors, organisers of competitions, newspaper editors, television broadcasters, magazine importers, ordinary smokers, etc. The list goes on and on.
Coupled to this is the fact that the prescribed penalties are extremely severe, and come as a shock when one considers the fact that all these forms of behaviour are now criminalised for the first time. It is therefore no wonder that the public has taken note of the bill with a sense of disbelief and cynicism, a clear indication that it will be widely disrespected when it becomes law.
The Minister's reaction to criticism of the bill has been that law enforcement will be selective or will not take place at all. This is unacceptable. No government can afford to undermine legal certainty and respect for the law in this manner. The proposed selective enforcement undermines the Rule of Law and will lead to discrimination. It is for Parliament, and not the Minister, to determine the law.
We must also not forget that there is a small but vocal anti-tobacco lobby group behind this bill, and that overseas experience shows that similar lobby groups use laws like this to harass ordinary people. In New Zealand such a law was used to intimidate tobacconists to remove the word "tobacconist" from their shops , and even to force the publishers of dictionaries to remove the word "tobacco" from future editions. In Australia the Australian Medical Association suggested that newspaper editors submit their reports on Formula One racing to the government for prior approval, so that any pictures of for example Formula One cars could be censored. Legislation must be prudent and balanced and not a tool for intimidation or excess.
The AHI has no problem with clearly thought through legislation which appropriately deals with tobacco control with an understanding of this country's capacity and economic and social realities. This bill, however, shows clumsy adoption of parts of foreign systems, a lack of understanding of the consequences and bad governance.
Cost to business community and the economy as a whole
Speeches by the Minister indicate that The Department of Health believes that this bill will not have any negative effect on the economy, and specifically on employment. When one looks at the list of parties giving evidence to this Committee, it becomes clear that this is a misconception. Leaving the tobacco industry aside for the moment, it seems just logical that taking away R250 million per year from advertising agencies and the media and R40 million per year from sporting bodies will have a major impact on economic activity and employment. The total ban on smoking in the hospitality industry will have a similar effect. The statement by the Minister's spokesperson, Mr Vincent Hlongwane, that restaurants will receive exemption only if they can show "that they will lose 90% of their customers", indicates that the ultimate aim is a total ban.
Whether the benefits outweigh the costs, is a matter for debate. What is not acceptable is a naive assumption that there will be no significant costs.
The South African Tobacco Industry
That South Africa, being part of the SADC region where tobacco is grown cheaply and extensively in Zimbabwe and Malawi, has a successful tobacco farming community which employs about 30 000 rural people, is an achievement in its own right. That we also manufacture about 99% of our cigarettes locally, is another one. What this bill will possibly achieve, is to move this economic activity to another, possibly SADC country, while achieving little in terms of lowering tobacco consumption.
We must consider the fact that import duties are falling steadily, and that new entrants into our market will import rather than manufacture locally. In this respect, advertising is an important tool by which local manufacturers can defend their market share, and make it difficult for importers, because they then also have to advertise. When advertising is prohibited, importers can come in and compete on price alone. The bill could therefore lead to cheap imports replacing most of the locally manufactured cigarettes, and thus to massive job losses.
Even discounting the massive problem of global instability of markets and recession, unemployment is an extremely serious problem in this country. Hundreds of thousands of jobs have been lost over the last few years. This crisis is the reason for the Presidential Jobs Summit on the 30th of this very month. Any legislation that will exacerbate this extremely serious problem requires the closest consideration.
Making Tobacco Policy
As a business body we follow many bills as they pass through the legislative process. This bill is exceptional, as the Department of Health from day one adopted an adversarial approach to the tobacco industry, declared it to be some kind of "enemy", and excluded it and all the stakeholders related to it from the drafting process. Instead of heeding the requests of the industry for consultation, it chose to spend money to demonize it by way of for instance advertising campaigns on the radio. This has lead to a bill which, while claiming to have the laudable aim of preventing children from taking up smoking, is draconian, possibly unconstitutional and opens the door for a witch hunt against a lawful industry, providing employment for thousands of people.
As the business community, we insist on more balanced legislation taking our interests into account. It is our economic activity which provides tax income to the Government and employment to our people.
We therefore call on this Committee to take its responsibilities seriously and do whatever is necessary to ensure that this seriously defective bill before you is replaced by balanced, appropriate law showing an understanding of the rule of law and good governance.