20 October 1998
ROBERTSONS FOOD (PTY) LTD SUBMISSION ON THE TOBACCO PRODUCTS AMENDMENT BILL
Robertsons Foods (Pty) Ltd is the manufacturer and marketer of a range of well-known brands.
We requested the opportunity to present to this Portfolio Committee on Health, not due to any particular sympathy or concern regarding smoking (I myself am a non-smoker). Instead, the motivation was a concern for the impact of this bill on freedom of commercial speech, freedom of individual expression, and the precedent set for similar restrictions to be placed on any activity which may be demonstrably harmful.
2. FREEDOM OF SPEECH
Freedom of speech is a democratic right, enshrined in the Constitution and may be limited, only in accordance with section 36 of the constitution.
In other words, if it is "reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom".
Section 36 also states that less restrictive means of achieving the purpose should be considered.
Justification of the Tobacco Product Amendment Bill must therefore take into account whether it is reasonable and justifiable in such a society, and whether it is based on human dignity, equality and freedom.
Justification of the act would also have to clarify that there is no less restrictive means of achieving the objectives of the Tobacco Products Amendment Act.
It is well documented that smoking can be detrimental to one's health. And it is clear that the Minister of Health has particular concerns regarding under-age smoking. The question remains whether the fact that it is unhealthy is sufficient justification to limit Freedom of Speech by means of the Tobacco Products Control Amendment Act.
The intention is to limit Freedom of Speech on the grounds that smoking is unhealthy, but we are all aware that the draft White Paper on alcohol is complete, and the acceptance of the Tobacco Control Amendment Act could well just be the beginning, to be followed by similar legislation to protect South Africans from alcohol, and beyond that by anything which is deemed to be bad for them. The precedent is clear. If advertising on tobacco can be banned on the basis that it Is detrimental to one's health, then by the same token, advertising on a wide range of products and services could be banned.
A case could well be built against the advertising of products such as baby formula, on the grounds that many people misuse them, and that under-dosing could lead to malnutrition, or that using formula without sterile water and bottles could lead to infection.
A precedent could also be set to justify intervention in advertising activities such as mountaineering or sky-diving.
4. APPLICATION OF SECTION 36 OF THE CONSTITUTION
By banning all advertising of tobacco products, the Act will place limitations on human dignity, equality and freedom.
It is inevitable that the loss of advertising revenue will cause job losses across a broad spectrum of industries. It is unlikely that the tobacco industry will see short term losses, as smokers will continue to smoke regardless of a lack of advertising. Job losses will, however, be immediate in industries which rely heavily on the tobacco industry. These include advertising agencies, publishing, sign-writers, magazine distribution companies, sports coaching, sports administration and all those involved in the promotion of sponsored sporting events.
With current unemployment levels a source of major concern, and indisputably linked to high crime rates and social dislocation, it is of extreme concern that legislation which will definitely lead to unemployment, impacting on individuals' human dignity, is so readily accepted.
The Act also jeopardizes the right of any new company to launch into the tobacco products market in competition to the existing players. It would be very hard for anyone to launch against the existing brands without advertising, This clearly affects the equality of any new company relative to the existing players in the tobacco market.
The act limits the consumer access to information. Without advertising there can be no communication on new product developments, which may be of real benefit to the consumers. Developments such as reduced tar contents have been promoted, encouraging brand switching from the high tar variants to the new low tar, less hazardous brands.
5. EXCEPTIONS TO THE ACT
It is of relevance that there are already indications that there may be exemptions from the Act.
Unless imported magazines are banned, these magazines will remain available to a limited minority, who will be exposed to advertising of cigarettes, as well as updated information on developments in the tobacco industry. If they are to be banned as they might contain such advertising, It Is an additional restriction of the freedom of choice.
It will be necessary to make certain exemptions in terms of promotional items which display tobacco product logos. There are many items in existence currently, items such as T-shirts or jackets, umbrellas and sports bags. Although new distribution of such items will be prohibited, it would be unreasonable to expect people who now own such products to discard them, or to fine people who wear clothes or use umbrellas which they may have owned prior to the legislation.
Mr Mandela met with Bernie Ecclestone from the International Formula 1 Grand Prix, as there was concern that South Africa could not host a Grand Prix due to this legislation, and the involvement of the Tobacco industry in motor racing.
This surely constitutes recognition of the economic role that the tobacco industry can play in South Africa. It is of concern that motor racing was singled out. The local tobacco industry plays a large role in sponsorships of sport, and there is no clear reasoning why the Grand Prix should be given any more consideration that local activity.
If it is acceptable to allow international tobacco companies who sponsor the Grand Prix to advertise in South Africa, then it is unequal and therefore unacceptable in terms of Section 36 to ban sponsorship of other sporting events by tobacco products.
6. EVALUATION OF ALTERNATIVE METHODS TO ACHIEVE THE PURPOSE OF THE ACT.
The purpose of the Act is to reduce the incidence of smoking among South Africans, and particularly among the youth.
The efficacy of banning advertising in achieving this objective is debatable, and should be evaluated against alternative methods before this legislation is passed. This should be done not only in the interests of seeking the best method to alert potential smokers of the hazards of smoking, but in accordance with the Constitution, which clearly states that Freedom of Speech, as one of the constitutional rights, may only be limited taking into account all relevant factors, including less restrictive means to achieve the objective.