20 October 1998
Chairperson, Honorable Members
In my application to make a submission to this Committee, I deliberately requested one of the later slots. I did this in the hope that I could possibly towards the end of the hearings make a contribution which will be of assistance to the Committee, in view of the fact that it has only a single day, tomorrow, to deliberate on this bill.
It is by now clear to all of us that this bill was tabled in Parliament with good intentions, as its stated aim is to improve the health of the citizens of this country. It is also clear from the proceedings over the last two days that the health issue is of overriding concern to especially this Committee. We expected that this would be the case, and we would like to reiterate that we acknowledge the right of the Government to adopt reasonable tobacco legislation.
Our main concern is that the process which culminated in this bill was unfortunately dominated by the health issue only, to the extent that its drafters:
· Uncritically accepted all the premises upon which the bill is based;
· Uncritically accepted the evidence submitted in support of these premises;
· Unconditionally adopted the most extreme measures available and;
· Consistently failed to determine and consider the full impact of the bill.
The process leading up to the proceedings of yesterday and today was further characterised by a desire to avoid any discussion of the premises of the bill, an outright rejection of any evidence conflicting with the views of the drafters of the bill, a refusal to consider the availability of less restrictive means, and an unwillingness to afford stakeholders other than the anti-tobacco lobby any consultation.
The result is that this Committee is confronted with a bill which, despite being well-intended, is severely flawed. The duty now rests on you as members to address the concerns which were raised for the first time by many of the delegations which attended these hearings.
Allow me to summarise some of the reasons why this bill appears to be severely flawed:
· On the issue of advertising there is a glaring discrepancy between the preamble of the bill and its final contents. The preamble focuses on lifestyle advertising and its claimed effect on children. The Bill itself appears to contain a total prohibition on all communication on tobacco products. This means that the measures proposed in the bill go much further than what is reasonably required to achieve its stated aims. In this regard the Committee simply cannot ignore the Canadian experience.
· It is unlikely that the Minister will be able to provide sufficient proof that she can address her concern about youth smoking only by way of a total advertising ban. She is therefore exposing the final legislation to the possibility of a legal challenge.
· The bill contains provisions on trade mark use which are unclear and which will affect a whole range of non tobacco-related activities. The unintended consequences flowing from these provisions may cause the country embarrassment in international trade circles.
· The section on the proposed ban on smoking in public places is fraught with procedural and substantive difficulties. It will result in endless legal disputes, enforcement problems and civil disobedience if not revisited.
· The legal drafting found in the bill is deficient. Copying sections from the legislation of countries likes Canada and Australia has led to a Bill which is extremely difficult to interpret, and which will cause legal uncertainty. If we for example look at the Australian laws on which this Bill is based, we see that they contain a wide definition of advertising, followed by focused prohibition clauses, and followed further by lists of exemptions. In this Bill we find an all-encompassing definition of advertising, coupled to an extremely vague prohibition clause. None of the overseas exemptions appear. Affected parties must now await the decision of the authorities as to how the final legislation will be enforced.
This brings us to the position of the tobacco industry. I think that the proposal of The Tobacco Institute, outlined by Mr Edward Shalala, is reasonable in view of the health, youth, economic and constitutional concerns which have been raised.
This committee is facing a difficult task. An enormous amount of evidence, often conflicting, has been placed before it over the last two days. It seems humanly impossible that its members can study this evidence overnight and be able to judge the issues by early tomorrow morning. It further appears to be impossible to address this controversial and seriously flawed bill in just one single day.
The committee may be tempted to make amendments without careful consideration, or to simply give up and pass the bill without any amendments. Such a course of action will mean that these hearings will have been a meaningless exercise. Our request to you is that you rise to the challenge and do justice to the values enshrined in our Constitution, and to the role Parliament has to play the legislative process. You can only do this by allowing yourself more time to study the evidence and the issues, and by involving all stakeholders in the search for a balanced tobacco control policy.