Tobacco Institute of Southern Africa
THE TOBACCO INSTITUTE OF SOUTHERN AFRICA
SUBMISSION IN RESPECT OF TOBACCO PRODUCTS CONTROL AMENDMENT BILL [B117-98]
Tobacco Products Control Amendment Bill
The Tobacco Institute of Southern Africa (TISA) represents several role players directly involved in the tobacco industry.
TISA is extremely concerned about the proposed Tobacco Products Control Amendment Bill, and has prepared the detailed submission attached hereto.
TISA acknowledges the right of the Government to introduce measures on tobacco control, but calls for a balanced approach and for due recognition of the constitutional principles applicable to such legislation. In particular it would like to point out the following:
· This Bill was drafted in a manner which excluded participation by the tobacco industry, despite clear constitutional guarantees to the contrary, and despite several requests for consultation with the Minister.
· The Portfolio Committee of the National Assembly will now have to consider in full the alleged factual bases underpinning the proposed measures, their constitutionality, their impact on various stakeholders and the many unintended consequences of the Bill.
· TISA is still severely hamstrung by the fact that it has been unsuccessful in its efforts to obtain access to the information which the Department of Health will use to justify the proposed measures.
· Concern about smoking by children is a particular concern listed in the Preamble to the Bill. TISA shares this concern, and supports all reasonable Government policies aimed at addressing it.
· The proposed legislation is vague and ambiguous and the content of the Bill does not correspond with its stated objectives.
· The Bill is not tailored to its own objectives and will result in a multitude of unintended consequences.
· The proposed ban in the Bill is not even limited to the advertising of tobacco products, but goes much further, and will affect a variety of unrelated parties and activities.
· The South African Constitution is supreme law, and all legislation or conduct inconsistent with the Constitution is invalid.
· Constitutionally protected rights and freedoms, such as intellectual property and freedom of expression, are impinged upon in a manner not compatible with the requirements of the Limitation Clause in the Constitution.
· The constitutionality of an almost total ban on communication by tobacco companies and other parties about tobacco products has not been considered by the drafters of the Bill.
· The concept of separation of powers will not be fully respected if the ministerial powers provided for in this Bill are implemented.
· The constitutional division of competencies between national, provincial and local governments has apparently been ignored.
· The implementation of this Bill will probably result in a violation of some of South Africa's international obligations.
· The penalty regime proposed in the Bill is not only draconian, but also unconstitutional.
TISA proposes a consultative process in order to address the concerns mentioned in this submission. This process should involve all stakeholders, and should aim at achieving a balanced policy which addresses constitutional, economic and social issues.
SUBMISSION TO THE MINISTER OF HEALTH
TOBACCO PRODUCTS CONTROL AMENDMENT BILL [B117-98]
This submission is presented in response to the Ministry's letter dated 14 August 1998 and the further letter from the Ministry dated 28 August 1998. We appreciate the opportunity to make submissions on the basis, as outlined in the first letter, that suggestions "of a procedural, substantive or technical nature" are invited and that "these will receive due consideration."
Members of the Tobacco Institute of Southern Africa are farmers, co-operatives and manufacturers.
The Tobacco Institute is deeply concerned about the proposed Tobacco Products Control Amendment Bill (hereinafter referred to as the Tobacco Bill) published in Government Gazette No. 19158 dated 14 August 1998. It raises a number of issues which need to be addressed. This submission has several objectives, namely:
· to respond to the invitation of the Minister;
· to draw attention to those provisions in the Bill giving rise to our concerns; and
· to engage in a constructive dialogue in order to develop a policy regarding the control of tobacco products which is viable, enforceable, balanced and appropriate to South African conditions.
This process, we believe, has to be guided by the Constitutional provisions on effective consultation, transparency, equity and public participation. It is our sincere hope that our concerns will meet with serious consideration and will lead to alterations which will bring the Bill within the parameters of a balanced and fair approach.
This submission is made in the context of the recent application to the High Court asking for access to the studies and information on which the Bill was based. The application was dismissed with costs, with the result that these studies and information have not been made available to us. This has an impact on the submission, as detailed information to which to respond is not available to us.
Further submissions on amongst others the economic impact and implications of the Bill will be made to the Portfolio Committee in due course.
2 THE DRAFTING PROCESS: SOME CONCERNS
South Africa is now a Constitutional State, based on the supremacy of the Constitution and the Rule of Law, two of the "founding provisions" in Section 1 of the Constitution. These founding provisions are so important that they are entrenched through the specific requirements of section 74 of the Constitution, which requires a 75% majority of the National Assembly to amend them.
The Constitution of 1996 has fundamentally changed the manner in which legislation is to be drafted and adopted. Public participation, for example, is now an important element of the legislative process. Such a process must necessarily incorporate the interests of all relevant parties. In addition to these procedural requirements the Constitution also demands adherence to and respect for certain substantive provisions. The legislature, the executive and all organs of state must, in the words of section 7(2) of the Constitution "respect, protect, promote and fulfil the rights in the Bill of Rights."
We are extremely concerned about the manner in which this Bill was handled and drafted. The South African Constitution lays down clear requirements which aim at ensuring that the legislative process is open, transparent and allows for public participation. Section 59, for example, deals with public access to and involvement in the activities of the National Assembly and states that this body must "facilitate public involvement in the legislative and other processes of the Assembly and its committees" and must "conduct its business in an open manner". Section 57 requires the National Assembly to make rules and orders "concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement."
Our Constitution, therefore, deals with the legislative process in a manner that clearly requires openness, transparency and participation.
The legislative process entails both legislative and executive elements. Preparing and drafting a Bill is legislative in nature because it sets the legislative process in motion. The executive is, in any event, also bound by the constitutional obligation "to ensure accountability, responsiveness and openness." (Section 1(d) of the Constitution). Similar sentiments are expressed in section 195, while section 92(3) requires members of the Cabinet to "act in accordance with the Constitution".
TISA has repeatedly requested an opportunity to discuss this Bill with the Minister. These efforts met with no success. It was also indicated on several occasions that a considerable number of international studies were taken into account for the purposes of drafting this Bill. Despite several requests TISA was refused the opportunity to be allowed access to any of these. Eventually a court application was brought relying on amongst others the right of access to information in the Bill of Rights. Despite an initial undertaking by the Minister to grant us access, this was denied the following day and the matter proceeded before the High Court. Our application was refused and the matter is presently on appeal. It is important to point out that the judge did not rule that we do not enjoy constitutionally protected rights. On the contrary, his judgment indicates that our application was "premature". "Applicants have not shown that they at this stage [i.e. before tabling in Parliament] require access to the information requested for the exercise of the protection of any of their rights."
The implication of the judgment must be that now that this second stage has been reached, that we are entitled to the studies and information requested. The reason why these should be made available is in order to give effect to the protection of the rights on which the application was based in the first instance.
Earlier in the judgment it is stated that ".. Applicants' concerns must relate largely to the possibility that the Bill if and when it becomes law would infringe their constitutional rights. In that event Applicants' remedy would be to have the offending sections struck down and they would obtain interim relief pending the outcome of an appropriate application." The judge was of the opinion that although public involvement in the legislative process is required "this does not mean that the Applicants can frustrate the legislative process by insisting on access to information to protect ostensible rights."
It is now abundantly clear that this Bill will become binding legislation in due course and that its impact on rights cannot then be said to be "premature" any longer. It will be rather unfortunate if resort must be had to litigation again to invoke the protection of the Constitution.
Legislation is the principal mechanism of communication between government and those under this state's jurisdiction. It must be certain, predictable and lasting. In order for these requirements to be met, legislation must be drafted carefully, with sufficient time and consideration given to the implications and possible consequences of the proposed law. It must be principled, that is, it must be based on and reflect the principles of the Constitution. This will ensure that it will last and that it will enhance the values underpinning the Constitution. Legislation and the accompanying legislative process can never be "ad hoc or exceptional" because of the allegedly exceptional nature of the matter that is to be regulated. Law is always of a general nature. Although it should be possible for a government to react to specific problems, such reaction must conform with the Constitution, its obligations and values. No situation is so "special" that the Constitution can be ignored. The South African Constitution is quite clear about this - that is why section 37 allows for exceptional measures to apply during a state of emergency and only for as long as that emergency lasts. In other words the Constitution creates the only acceptable instance when exceptional measures are permissible.
The legislative process does not begin the moment Parliament starts to discuss a Bill. It starts earlier when draft legislation is being prepared by a particular Ministry. The South African Constitution has created an open and transparent dispensation. These paramount principles are central to all activities of the state and to all branches of government. This applies to the executive as well; also when it prepares legislation. We are extremely concerned about the manner in which this Bill was handled and the lack, up until now, of a preparedness to allow for participation.
This submission contains comments on legal and constitutional issues and on some practical implications of the Bill. It deals with our concerns and the reasons for them. We sincerely hope that this will result in a preparedness to engage us further and to allow us to make proposals on how we believe this Bill can be improved in order to accommodate the legitimate concerns of all parties involved.
We would also like to respond to an unfortunate reaction to our endeavours to participate in this matter. We have gained the impression that our efforts are looked upon with some degree of scepticism; as if we are trying to use the Constitution and the process of participation for ulterior purposes. We want to make it quite clear that we are absolutely sincere in our efforts. We represent an industry with a long and direct involvement in the economic, industrial, labour, advertising, social and related fields of South African society. The interests involved here are of considerable significance. We believe that we are fully entitled to avail ourselves of the protection and scope that the Constitution provides for, and we do so in the sincere hope and expectation that it will be seen in that light and that our efforts will meet with a response inspired by the same inclination.
There are several reasons for this belief and approach. Firstly, the Constitution does not relegate us or our industry to a secondary status. Secondly, by actively using the protection and opportunities created by the Constitution, we contribute to a process of enhancing and strengthening the new order. Thirdly, by demonstrating that our system indeed works, a signal will be sent out which will inspire confidence in the new constitutional dispensation. This is an important consideration under present conditions of globalism and interdependence. It is because we believe in these new values and support them that we use them.
3 FACTUAL ISSUES TO BE CONSIDERED BY THE LEGISLATURE
We can only fully exercise our right to public participation by making both written and oral submissions to the Portfolio Committee on Health in the National Assembly. This is inevitable in the light of the Minister's lack of preparedness to involve us in prior consultation. It is further one of the consequences of the judgment rendered in the High Court with respect to our application for access to information.
With the task of addressing the substantive issues falling squarely on the shoulders of the Committee, many issues needs to be addressed in full and be considered. Opportunity should be granted to interested parties to explain and provide substantiation in respect of the following:
· The notion that cigarette consumption is rising in this country, while it in effect has fallen by more than 20% over the last four years.
· The notion that per capita consumption per smoker is high in this country while it is in fact very low.
· The fact there are almost no local statistics available on most of the issues in question, and that overseas data cannot be used as a substitute.
· The notion that this country is a large importer of tobacco products when in fact almost 100% of cigarettes consumed here is made locally, and a large percentage of the tobacco used is grown locally
· The impact which the Bill will have on employment.
· The impact which the Bill will have on the SADC region
· The notion that South Africa does not have a viable tobacco growing sector.
· The claim that tobacco farmers will be able to find alternative crops
· The economic contribution of the tobacco industry
· The alleged cost of smoking to the State versus its income from tobacco taxes.
· The alleged effect of advertising on youth smoking.
· The alleged effect of sports sponsorships on youth smoking.
· The studies quoted to support the notion that only a complete ban versus a partial ban will have any effect.
· The extent to which overseas documents which have no bearing at all on the marketing practices of South African tobacco companies can be used to justify the Bill.
· The impact which the Bill will have on sporting and cultural bodies.
· The content and validity of several polls used to justify the Bill.
· The viability of the proposal that tobacco companies sponsor events without any visible recognition.
· The constitutionality of the proposal to levy a tax on tobacco products in order to compensate sporting and cultural bodies.
· The cited overseas studies on brand choice and brand awareness used to justify the Bill.
· The issue of what constitutes a public place.
· The studies on environmental tobacco smoke with specific reference to the rejection of the EPA report by the courts and the recent outcome of the IAPC study.
· The conduct of specifically the South African industry over the last number of years.
· The issue of phasing in the Bill in order to reduce hardship especially to those who will lose their jobs.
· The effect of the Bill on small farmers and RDP projects.
· The fact that the Department has so far not yet applied its mind to the question as to whether the Bill in its current form is constitutional. The issue here is freedom of speech and Parliament will have to consider this carefully. Similar legislation was on 21 September 1995 declared to be null and void under the Canadian Constitution, which is very similar to ours.
4 GENERAL CONSTITUTIONAL CONTEXT
The first and most important constitutional principle applicable to the present discussion is that of the supremacy of the Constitution. Section 2 of the Constitution, one of the founding provisions, provides:
The Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid. and the obligations imposed by it must be fulfilled.
Legislation will have to comply with all constitutional requirements in order to be valid. Its potential impact on fundamental rights and freedoms, the protection of the competencies of the various spheres of government and on separation of powers requires careful consideration.
The fundamental rights contained in Chapter 2 may, under certain conditions, be limited. This may, however, only be done in the manner prescribed by the Constitution itself. Section 36 is the provision which deals with this particular aspect. It requires that a limitation of any fundamental right may only be implemented through "law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom."
The limitation of rights is, therefore, itself a limited power and is circumscribed by the Constitution.
Generally, if the State wants to limit rights and regulate legislative and executive action in an important area such as the one under discussion, the following constitutional context applies:
· The Bill of Rights protects fundamental rights and freedoms.
· Rights, as a rule, may be limited.
· The instrument through which this may be done, is law of general application.
· Such legislation can only be adopted in the manner and through the process laid down in the Constitution.
· imitations must be reasonable and typical of what is acceptable in a democratic society - which values dignity, equality and freedom.
· The onus, generally, to show that any proposed limitations will meet these constitutional standards, is on the State.
· Not just any form or means of limitation will suffice. If "less restrictive means to achieve the purpose" are available, they must be adopted [Section 36(1)(e)].
· The nature and extent of a limitation must be considered.
· Proportionality (the relation between the limitation and its purpose) must be considered.
It should also be pointed out that both natural and juristic persons (such as corporations) are entitled to the protection of the Bill of Rights, as provided for in Section 8 (4) of the Constitution:
A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person.
The South African Constitution is supreme and justiciable also with respect to the division of competencies between national, provincial and local spheres of government. All three enjoy the power to legislate. Schedule 4 deals with concurrent legislative competencies and Schedule 5 with exclusive provincial legislative competencies. Provincial and local government also enjoy those executive powers necessary to give effect to their legislative powers. The Constitution creates these powers, protects them and regulates the manner in which they have to be balanced and co-ordinated with each other. If these provisions are not respected and adhered to, constitutional invalidity will follow.
The separation of powers constitutes another constitutional norm which has to be recognised. The IegisIature, executive and judiciary each has its own domain and powers and these must be respected; the executive may not, for example perform a legislative function. When subordinate legislation (for regulations or notices by a Minister) is adopted, it may only be done in a manner example, regulations or notices by a Minister) is adopted, it may only be done in a manner which clearly distinguishes between law-making (Parliament's domain) and the implementation of legislation. If regulations, for example, have to be issued in order to implement particular provisions in national legislation, the Act itself should contain sufficient guidance as to the content and direction of such regulations. The executive may not start "legislating" because of vagueness in an Act. It is our contention that this Bill gives legislative powers to the Minister that are so broad that the separation of powers is jeopardised.
5 GENERAL PROBLEMS OF INTERPRETATION
The implementation of legislation always involves its interpretation. Legislation gives effect to a general policy or objective and must do so in a manner which is clear and unambiguous.
Legislation in violation of the Constitution is invalid. This requirement exists in South Africa only since 1994 when a supreme and justiciable Constitution was introduced. Before that Parliament was sovereign and it was not possible for the courts to declare legislation invalid.
Section 39 of the Constitution lays down how legislation is to be interpreted in order to conform to the Bill of Rights. The values of an open and democratic society (such as transparency, tolerance and a balanced approach) must be promoted. Legislation must be interpreted in a manner which will "promote the spirit, purport and objectives of the Bill of Rights." (Section 39(2) of the Constitution).
The language used in an Act of Parliament forms the starting point of any interpretation exercise. It has to guide subsequent implementation in such a clear manner that there is no uncertainty, otherwise the requirements of the constitutional state and the rule of law referred to above will be violated. This has implications for the executive and all officials who have to give effect to the objectives and policy in new legislation. This applies to the national, provincial and local spheres of government.
6 THE CONTENT OF THE BILL
6.1 The Objectives stated in the Preamble
The Preamble to an Act constitutes an important interpretational aid. In the present instance, there is a stark contrast between the Preamble and the content of the Bill. The result is confusion and lack of clarity and this may jeopardise the validity of some of the provisions. An Act is supposed to achieve its own stated objectives and its content will be interpreted in this light.
The Preamble asserts a need to "align the health system with the democratic values of the Constitution". This suggests that a sincere effort will be made to balance the legitimate objective of protecting public health with the rights and freedoms associated with an open and democratic society. The discussion which follows reflects our opinion that this balanced approach is not reflected by the content of the Bill.
The Preamble states that "the association of smoking with social success, business advancement and sporting prowess through the use of advertising and promotion has the particularly harmful effect of encouraging children and young people to take up smoking". We would have expected the content of the Bill to be tailored to meet only those objectives and not to impinge on unrelated legitimate business practices. This is however not the case. Instead of proposing measures eliminating these particular associations (what is commonly referred to as 'lifestyle' advertising), a comprehensive ban on all communication with respect to tobacco products, not only by tobacco companies but also by unrelated third parties, is prescribed.
The careful balancing that is required in order to ensure validity of legislation of this kind is demonstrated by the following statement in the Canadian Supreme Court judgment of RJR MacDonald Inc V Attorney-General of Canada of September 1995:
"Minimal impairment analysis requires consideration of whether or not the legislature turned its mind to alternative and less rights-impairing means to promote its legislative goal. Here, evidence related to the options considered as alternatives to the total ban was withheld from the factual record. In cases like these involving wide public interest constitutional legislation, Government should remain non-adversarial and make full disclosure. The total prohibition on advertising (the full rights-impairing option) is only constitutionally acceptable if information is provided that such a total prohibition is necessary in order for the legislation to achieve a pressing and substantial goal."
The Department rejected one of the most obvious measures to cut down on youth smoking, which is to raise the age of sale to 18 years and to provide for effective enforcement. This will ultimately be relevant when the constitutionality of the Bill will be tested against less restrictive means to achieve the Government's purpose.
Another objective is "to deter people from taking up smoking and to encourage existing smokers to give up smoking." This presumably requires adequate emphasis on education in order for people to change their behaviour or not to take up smoking in the first instance. The Bill does not address this.
It is our belief that the Bill in its present form will not achieve its stated objectives but will result in unintended consequences. This legislation is overbroad and the tests of section 36(1) of the Constitution are not complied with. The requirements of proportionality and of less restrictive means to achieve the purpose will be violated.
6.2 Lack of clarity and legal certainty
It appears that the Bill has not been properly integrated with the existing Act and this results in uncertainty. The existing Act predates the present constitutional dispensation. When amendments are added to such an "old order" law, considerable care must be taken in order to ensure that the concepts embodied in the 1996 Constitution such as fundamental rights, protection of provincial competencies and the separation of powers are fully respected.
Vague empowering clauses in an Act may give rise to attacks on the Act itself. One of the justifications for public participation in the legislative process is to advance openness, transparency and balanced policymaking. Another advantage is that an additional opportunity is provided to ensure full compliance with the Constitution and to prevent subsequent delays and embarrassment caused by challenges on such legislation through the courts on the grounds of its alleged unconstitutionality.
The language employed in an Act should provide clear guidance to the executive action responsible for its implementation. It is our fear that lack of precision and insufficient consideration for the protection of fundamental rights and freedoms may result in arbitrary action.
Those potentially affected by an Act should be informed in clear terms as to what is allowed and what is prohibited. For this to be achieved legislation must be clear and certain. It should be possible to judge and anticipate limitations on rights and freedoms and the nature and scope of executive action pertaining to such rights and freedoms.
6.3 Use of Foreign and International Precedents
This Bill does not create the impression of an integrated and balanced document suitable for local needs. It apparently borrows quite heavily from the legislation of several other countries and from documents produced by international organisations such as the World Health Organisation (WHO).
The use of borrowed provisions constitutes a particular danger. To identify each of these clauses and track it back to its country of origin is a time-consuming but necessary undertaking, in the sense that the way in which a clause fits into the legislation of its country of origin and the way in which it has been interpreted by its courts are crucial to the local debate.
It has been possible to trace several of the clauses in this Bill to the legislation in force in New Zealand, Australia (on the federal level), the Australian states of Victoria and New South Wales and Canada. Some clauses also appear to originate from a World Health Organisation document titled "A Proposed Model of a Tobacco Products Control Law". This document was apparently formulated at a WHO conference which took place in the Philippines some years ago.
All these clauses were apparently put together to form a single Bill, but without regard as to how they would interact with each other. No effort was made to fully change the terminology and language to fit in with South African legal practice or to accommodate South African institutions and procedures. It is also clear that the constitutional obligation to respect and protect the rights listed in the Bill of Rights was not sufficiently considered; for example the fact that South Africa has a single limitation clause in the Bill of Rights with very clear guidelines means that local legislation will have to comply with these requirements. "Imported" formulas originating from different constitutional dispensations will not pass muster here. Another example is the South African formula on the division of legislative competencies on national and provisional levels. This differs fundamentally from formulas applicable in classical federal states.
Many of these "borrowed" clauses have caused severe problems in their own countries. Almost every one of them at some stage or another became controversial because of their effects on unrelated activities and third persons.
This "drafting technique" creates serious interpretation problems. The drafting of legislation involves a single exercise with clear objectives, style, completeness and lucidity as its basic aims. It has to "make sense" and has to be "home grown", both with respect to recognising local political, social, historical and economic conditions, but also because national constitutional requirements must be respected. Some of the dispensations from which this Bill is borrowing differ fundamentally from ours. Australia, for example, does not have a Bill of Rights in their constitution.
In some instances even the "borrowing" was incomplete. When certain provisions of the Australian legislation were incorporated into this Bill, some of the exceptions listed there were omitted.
Borrowing from international instruments poses a very particular problem. International organisations (such as the WHO) are not "governments" and cannot "legislate" for states. Their "model" documents are general guidelines for the various member states, to be adapted to local needs and requirements and made applicable as municipal law through the domestic legislative process. National dispensations differ fundamentally from international organisations and the terminology in international "models" must be "translated" into specific domestic law.
A single international model must therefore by necessity be vague and general and allow national parliaments sufficient scope to legislate and determine their own definitions according to their own constitutions and legal requirements. That is why the WHO "definition" of a trade mark used in clause 1 (j)(i) is unworkable and unsuitable for direct use in the municipal order. It was never intended to be used in national legislation. It must also be noted that this WHO model does not constitute a treaty.
7 THE IMPACT OF THE VARIOUS PROVISIONS OF THE BILL
7.1 The definition of advertise is so wide as to go beyond the generally accepted meaning of the term. It also goes much further than the stated objectives in the Preamble of the Bill. This definition now covers any communication that is designed to promote or publicise a tobacco product, and will lead to the following consequences:
· Members of the tobacco industry will be unable to introduce tobacco products to the trade. This is a result of the inclusion of all forms of communication "publicising" a tobacco product. A ban of communication within the trade may lead to vertical integration, which is prohibited in the proposed Competition Bill.
· Communication within a company will also be affected. It will not be possible for internal communications to refer to the products of tobacco companies. It will thus prevent communication or instructions by a company to its own personnel.
· Manufacturers, wholesalers and retailers will not be able to respond to enquiries from members of the public regarding tobacco products and their availability.
· Manufacturers will not be able to use company names on invoices, statements, orders, letterheads, business cards, cheques, manuals or other documents where there is an overlap between the company name and their trade marks.
· Publicly listed tobacco companies will not be able to publish their annual reports. This is in conflict with for example JSE requirements. Advertisements which may be obligatory in terms of Company Law may also be affected.
· The definition covers communication between individual persons. If one individual offers another a cigarette and mentions the brand, this could constitute a prohibited message intended to promote smoking behaviour. The sanction for such behaviour is a fine of R200,000.
7.2 The word "publicise" is particularly restrictive, as it conceivably covers almost all communication on tobacco products. In New Zealand for example it has caused anti-tobacco lobbyists to insist that the word "tobacconist" may no longer appear in dictionaries, trade listings and on the outside of shops. The same calls were made in respect of tobacco companies being listed in telephone directories.
Complications also arise with respect to the use of trade marks on tobacco products or on their packaging. Trade mark use is protected by intellectual property law, international treaties and the property clause in the Constitution.
Additional problems are caused by the word "publicise" in relation to the right or obligation of a manufacturer or marketer to apply its company name to premises it occupies. There are a myriad of other examples.
7.3 The proposed definition of 'advertisement' will also cover unconnected activities of third parties:
· Books or magazines printed outside the country would be banned if they were to contain tobacco advertising. In New South Wales in Australia where substantially the same definition is used, a specific exemption had to be created to cover this, and also the further problems listed below.
· Tobacco advertisements which are incidental accompaniments to the subject of a film or video tape would be banned, which would lead to either censorship or the banning of the film or video tape itself.
· Normal editorial content on smoking behaviour would be forbidden. An example would be an article on the smoking of cigars. This would constitute an totalitarian restriction on the right of freedom of speech, and would be unconstitutional.
· A broadcaster will fall foul of the definition if the contents of the broadcast are such that it contains an "advertisement" as defined. An example would be the SABC broadcasting a tobacco-sponsored Formula One event.
· Editorial content on overseas sporting events which are sponsored by tobacco will have to be censored to eliminate pictures of for example tobacco-sponsored Formula One cars. This happened earlier this year in Australia, when the Australian Medical Association complained about media reports showing photos of such vehicles.
· Communication by individuals is again covered by the definition of "advertisement" and by the wording "no person". An individual would therefore contravene the Bill if he or she were to offer a cigarette to another individual, as it would be a message intended to promote smoking behaviour.
· Individuals may from time to time display personal items which may constitute an advertisement as defined. This was covered in a previous draft of the current Bill, but has now been deleted.
· Problems are found in the wording of subsections (a) and (b). It would seem that the word "advertise" is used in a manner which is not related to the definition provided earlier. In subsection (a) it appears that no advertising for whatever product is allowed if use is made of amongst others "tobacco trade marks used on tobacco products". This, read in conjunction with the definition of a "trade mark" creates a lot of uncertainty. It seems to have the effect that advertising for a whole range of unrelated products and services will be banned.
These wide effects cannot be assumed to be intended. It violates the 'overbroad" test of Section 36 of the Constitution and is in conflict with the stated intent of the Bill. As a consequence, this rather central aspect of the Bill should be considered as unconstitutional. In order to render it constitutional a formulation should be adopted which will make it clear that only messages to the general public on the promotion of smoking, are prohibited.
In its present form it also creates such a degree of uncertainty that requirement for clarity and predictability in legislation is not met. It must be remembered that non-compliance with subsequent provisions in the Bill relating to advertising constitutes a criminal offence.
These shortcomings are cause for even more concern if it is taken into account that contravention of this clause carries a potential penalty of a fine of R200,000. It is of vital importance that the effect and scope of the application of this clause are determined in order to avoid a minefield of possible criminal charges.
8 FURTHER PROBLEMATIC CLAUSES
8.1 Clause 1(e) creates considerable uncertainty by including "workplace" in the definition of "public place". Workplace is also defined elsewhere. Some workplaces are clearly not open to the public; as required in the definition of public place. The reference to enclosed area as opposed to an indoor area also creates uncertainty as to the meaning of the clause.
8.2 The proposed list of definitions in clause 2 of the Bill contains no definition of "organised activity". "Organised activity", however, is the heart of the second part of clause 4 of the Bill.
8.3 The new section 3(3) endeavours to define "organised activity". One would have expected all definitions to appear in the definitional section and not in the body of the Bill.
9 THE POWERS GIVEN TO THE MINISTER
Clause 3, as per the Minister's latest proposals, provides for the power of the Minister to issue notices in the Government Gazette prohibiting the smoking of tobacco products in any public place or declaring specified public places as permissible for smoking subject to any conditions that may be specified. This is a far-reaching empowerment to "legislate" through the executive and raises the following serious concerns:
· The concept of the separation of powers is not respected. The Minister now "legislates" in a manner that impinges on the powers of the national legislature. The delegated legislative power created here is without any legislative framework laid down by the national legislature and therefore allows the Minister an unacceptably wide legislative discretion.
· The constitutional scheme of the division of competencies between provinces and the national sphere of government is violated. Only provinces may legislate with respect to public places, as indicated in Schedule 5 of the Constitution. It is important to note that most of the exclusive powers listed in Schedule 5(b) are to some extent related to public health. The implication of this seems not to have been considered sufficiently.
· Section 44(2) of the Constitution provides the only basis in terms of which intervention in Schedule 5 competencies may occur. This has to meet with the strict requirements listed there: Only Parliament may intervene, and the decision to intervene must be justified.
· Legislation contemplated in terms of section 44(2) must always be tabled first in the National Assembly (see section 76(4)).
· Ministerial notices do not provide for any form of public participation or representations by the public; as is the case with respect to regulations (see section 6 of the existing Act).
10 USE OF "TOBACCO TRADE MARKS" ON NON-TOBACCO GOODS
Although the Bill in its present format does not contain a prohibition on the use of "tobacco trade marks" on non-tobacco goods, public statements by the Department of Health still refer to this possibility. Such a reference also appears in paragraph (b) of the Afrikaans version of the Memorandum accompanying the Bill. Government action on the marking or labelling of goods for public health purposes is covered by the Agreement on Technical Barriers to Trade (TBT), an international agreement to which South Africa is a party and which creates international obligations for South Africa in the context of its membership of the World Trade Organisation (WTO). The Department has so far done nothing to comply with South Africa's obligations under the TBT. A state cannot escape its international legal obligations vis a vis other states by relying on its domestic law. Severe embarrassment and even international litigation could result.
11 FREE DISTRIBUTION OR REWARD
· The proposed section 4A(1) is vague, and can force various traders to engage in retail price maintenance. This possibly puts the Bill in conflict with the proposed Competition Bill. A similar clause was the subject of litigation in Australia, and details will have to be obtained about this and considered before the Bill is finalised.
· This section has also been changed lately to what seems to be an effort to exclude all smokers from all possible competitions. It appears to contain some typing errors, and does not correspond with the Afrikaans version of the text.
The proposed section further has implications far wider than the tobacco industry. It basically outlaws all forms of reward or competition based on aggregate retail sales. Such programmes by retail chains and credit card companies may be outlawed by this Bill.
12 THE PROPOSED PENALTIES
The latest indication as provided in Parliament by the legal adviser to the Department is that the proposed fines are to be minimum penalties which no court of law can commute. This amounts to an unconstitutional ousting of the judicial function, and a violation of the separation of powers principle.
This submission contains a general outline of the most important concerns of TISA regarding the proposed Bill. It is sincerely hoped that the matters raised here will be duly considered and that it will form the basis of a discussion with the aim of addressing our concerns. It is our belief that the matters raised here merit further attention and due consideration.
TISA is not opposed to the adoption of legislation dealing with the proper regulation of certain aspects of the tobacco trade. In some instances (such as the protection of children) we would even support stricter measures; for example an increase of the age limit in section 4(1) of the existing Act to 18 years.
In its present form the Bill does displays serious shortcomings. Certain provisions makes it susceptible to a constitutional challenge.
For the sake of all parties concerned and in the light of the constitutional, economic and international implications we again reiterate our request to be granted an opportunity to meet with the Minister in order to submit proposals which will accommodate the concerns raised here.