Strict new smoking laws for South Africa will soon be tabled before the National Assembly, where the Department of Health wants to tighten its control on where smokers can light up, and better regulate the emerging vaping sector.

Broadly, the draft laws cast a wide net to create zero-smoking spaces in public areas while also banning indoor smoking – including in private households where children are present. They also include tighter controls over the packaging and marketing of tobacco products.

One key area that has raised questions is that around extending the department’s oversight to vaping and electronic cigarette products. This is part of a concerted effort by the government to regulate this sector, which currently operates in a massive grey area.

Speaking to 702, the chief director for health promotion at the Department of Health, Dr Lynn Moeng-Mahlangu, said that the bill, when enacted, will be an ‘enabler’ for stricter smoking regulations in South Africa, with a particular focus on ‘new generation’ smokers.

She said that the bill itself does not detail how the vaping industry will be regulated exactly, as these will be determined by the health minister in separate regulations in time.

“The bill is an enabler so that the minister can create relevant regulations on the various aspects. Obviously, the new generations of products will be regulated, but in terms of the exact details, they will be covered in the regulations, not the act,” she said.

However, she noted that marketing will definitely be covered, as will the nicotine content of vaping products, which is also a “major problem”.

She flagged a growing concern over where vape shops are located – close to youth centres like universities or in malls – and said the government wants to address this before the country ends up like many other countries where in some cases as many as 27% of young people are hooked on vaping.

“It’s not a stop. We are not banning the products – we are regulating them. They have to be marketed safely. There is evidence these products cause harm,” she said.

Over-stepping

The draft laws have been hit with backlash from the vaping and tobacco industries, which have labelled them “draconian”.

CEO of the Vapour Products Association of South Africa, Asanda Gcoyi, said that the vaping industry has, to date, been self-regulating and making significant strides in professionalising the sector.

She said that she welcomes government regulation, as this helps protect consumers, but criticised the planned laws as overstepping and lacking input from the industry.

“The people most at risk are 8 million smokers who struggle to quit or don’t want to quit. We don’t believe this is the way to go about regulating the vaping industry, especially considering that it is a proven fact that it is a less harmful alternative to smoking. We never said it is without risk; however, it is less harmful to individuals than smoking tobacco,” she said.

On the issue of youth, she said this is a shared concern.

“Vaping products are for adult smokers looking for a less harmful alternative. What we don’t have, however, is a partnership with the department of health – they don’t associate with the industry, and they don’t talk to the industry, so it makes it difficult to run campaigns to make sure young people don’t have access to these products.”

“We’ve done a lot – all producers and sellers have signed a strict code of conduct, and our packaging guidelines have changed. We are self-regulating, but that is not enough for the department; hence they have gone to this extreme where they have draconian guidelines.”

Moeng-Mahlangu said that the department does not see any health benefits to vaping.

“Nowhere are we seeing a health benefit or these products helping us. Instead, we’re seeing an increase in combined smokers (smoking both vapes and cigarettes), and mainly youth smoking the new generation of products. If we leave it too long, we’ll find ourselves in the same position as countries that have 27% of youth hooked on these products,” she said.

Enforcing the laws

Sinenhlanhla Mnguni, the chair of the Fair Trade Independent Tobacco Association, said that the regulations are pushing the government into becoming a police state.

He said that the department has not engaged with the tobacco and vaping industries and is trying to implement laws that will shock the entire value chain, including people who are reliant on the industry for income.

“The tobacco industry is more regulated than any other – especially compared to alcohol and cannabis, which is coming up,” said Mnguni.

He said that adding more regulations doesn’t help and that the country needs better enforcement of the current laws.

“We’re now venturing into a police state – which is dangerous territory, especially when we don’t have the capacity to police,” he said.

Moeng-Mahlangu said that enforcement can be an issue. Health department inspectors cannot go into every household to check that people are not violating the laws – but she said that history has shown that as soon as the public is aware of problems, they are more than willing to report them.

As soon as the public knows that smoking in a house with children in it is against the law or that smoking in a smoke-free public space is happening, violators are more likely to be reported.

“When a person experiences a problem, they should be able to call in and say, ‘I am experiencing this problem’. If there is no law that covers that, then it means we can’t act – even when there are infringements,” she said.

What the new smoking laws want

The proposed laws were first published for comment in 2018 after cabinet approved the draft bill.

The draft bill is designed to address key areas relating to indoor public areas, display of tobacco products at point of sale, use of electronic devices and the introduction of plain packaging of tobacco products.

According to the explanatory summary, the bill provides for:

  • 100% smoke-free for indoor public places and certain outdoor areas as the minister may prescribe;
  • The ban on the sale of cigarettes through vending machines;
  • Plain packaging with graphic health warnings or pictorials;
  • Ban on display at point-of-sale; and
  • The regulation and control of electronic nicotine delivery systems and non-nicotine delivery systems and to provide for matters connected therewith.

Other implications of the laws include:

  • A ban on smoking in the workplace – is defined in the bill as ‘any place in or on which one or more persons are employed and perform their work, whether for compensation or voluntary’. This would mean homeowners may be banned from smoking in the presence of domestic workers or gardeners on the premises.
  • Smoking would also be banned if a home is used for teaching, tutoring or commercial childcare.
  • A ban on smoking in any motor vehicle when a child under 18 years is present and there is more than one person in that vehicle.
  • An extension of the laws to cigarettes and any devices used in connection with tobacco products and electronic delivery systems such as pipes, water pipes and electronic devices.
  • A ban on smoking in any enclosed common areas of a multi-unit residence.
  • The Minister may prohibit smoking in any outdoor public place or workplace if they believe it would be in the public interest.
  • Stricter rules on the depiction of any tobacco products – including a ban on the sale of any confectionery or toy that resembles or is intended to represent a tobacco product.
  • Harsh jail time or a fine depending on the severity of the offence. For example, those caught smoking in banned areas will receive a fine or prison time up to 3 months, while those found guilty of manufacturing or importing tobacco products which do not meet the new requirements and existing standards could face a fine and imprisonment of up to 10 years.

The current smoking laws ban smoking in public places but allow for designated smoking areas in places like bars, taverns and restaurants, provided that they do not take up more than 25% of the venue.

The new laws, once passed, would change this to a 100% prohibition of smoking in public areas.

Read: New smoking laws coming for South Africa – including a 100% ban in certain areas