Tobacco Products Control Amendment Bill Department of Health responses to public hearings

Meeting report

Tobacco Products Control Amendment Bill (the Bill): Department of Health (DOH) Responses to public submissions
The Acting Chairperson noted that this meeting  was an opportunity for the Department of Health to make its own presentation and give feedback about the Bill. Certain pertinent issues not contained in the Bill and some ambiguities would be resolved. Having dealt with these issues the Committee would then go through the bill informally and allow Members time to consult with their caucuses. The issues raised by Massmart would be dealt with the following Tuesday. 

Mr Thami Mseleku, Director General, Department of Health, appreciated the opportunity to clarify issues raised during the public hearings on the Bill. It was agreed that definitions of packaging and advertising did need to be addressed.

Mr Mseleku highlighted that the responsibility of the DoH as outlined by the Constitution included the determination of policies to protect the health and welfare of the nation. Thus the DoH did not share a common goal with the tobacco industry, and did not engage with this industry in quite the same manner as would other departments with their stakeholders – such as the Department of Trade and Industry.

However, having said that, it was noted that the Portfolio Committee and the Department had  allowed for participation by the public and stakeholders, by way of written submissions and engagement with the Committee. It was reiterated that the DoH had upheld all consultation practices required by the law. In 2003 a number of changes were made due to consultation with stakeholders, including the changing of the age limit for sale of cigarettes to 18 and the changes in regard to advertising. During the period 2003 to 2004, when the Bill was being deferred, the DoH had met with companies, individuals and stakeholders for consultation. He highlighted British American Tobacco’s (BAT) confirmation of an open and frank meeting with the Department. During this time there had also been consultation around the age at which people could purchase cigarettes, duty free sales and advertising, by way of a meeting held with Tobacco Institute of South Africa (TISA). The Bill had three phases. It was introduced in 2003, close to the elections, and therefore was referred to the new Committee. The Bill was presented to the new Committee in September 2004. The Bill was however again deferred due to changes to the World Health Organisation’s Framework Convention on Tobacco Control (FCTC). During this time further consultation was held with stakeholders. Once presented to the Committee the Bill was effectively out of the hands of the DoH, and it would serve no purpose for the DoH to consult further after this time because it was now a parliamentary process, unless it was directed to do so by Parliament. He reiterated that the Executive had fulfilled its obligation to consult and publish the Bill.

Mr Mseleku then addressed the issue of regulations. He said that practical and operational issues were dealt with directly by the Executive, and that this would be covered by way of regulation to avoid clogging up the process by having to refer back continuously to Parliament to amend the main body of the Act. Regulations would have to be published before being implemented. The Department upheld this.

The Acting Chairperson had made the point that this legislation dealt with a certain industry. The State Law Advisers had thoroughly examined the Bill for constitutionality, particularly in regard to the regulations. It was stressed again that the goal of the Department was not solely to regulate the industry, but to make policies in the interests of the health and welfare of the nation.

Discussion
The Acting Chairperson stated that the Director General’s point had been well made.

Dr R Rabinowitz (IFP) stated that she found it strange that the debate around smoking had been so forceful. She commented that there had been a strong lobby group from the tobadco industry but that she felt it was necessary to separate out issues of content and policy. She did not think there would be any point in going through the Bill if there was any suggestion that the industry might challenge the legislation in Court.

Mr M Waters (DA) asked for the Department’s comments on the issue of anonymous donations, and in particular wanted comment on the costing figures, savings, and the issues of Financial Intelligence Centre Act (FICA) compliance. He also asked for comment whether the consultation process had been fully satisfactory, in the view of the Department, and on the possibility of a court challenge.

Ms C Dudley (ACDP) commented that she was totally satisfied that the required consultation processes had been upheld.

Ms S Kalyan (DA) asked if the ban on advertising was the mandate of the DoH or that of Department of Trade and Industry. The impact of this on free enterprise and competition was questioned. She also asked it the DoH felt this legislation could stand up to a constitutional challenge.

The Acting Chairperson asked that deliberations on the complex issues around advertising should be kept for later debates.

Mr Mseleku responded that the Committee had no legal precedents on the issues of consultation. He stated that one danger of involving the stakeholders in every process of legislation was that the legislation would be hugely delayed and might never come about. The two main tests around the consultative process had been upheld: namely that sufficient time for public comment had been given and that those requesting the opportunity to consult had been given the opportunity to express their views.

In relation to the question on the FICA legislation, Mr Mseleku suggested that he give his answers at the same time as he would provide feedback on the advertising. In relation to the savings to the State, he said that presently the exact figures were not available but would be investigated.

The Acting Chairperson said he was happy with the responses around the issue of consultation. He said that consultation raised issues of corporate governance. He raised the issue of the splitting of the Bill, which he stated was against the wishes of the Committee.

Dr Rabinowitz agreed that she too was against the splitting of the Bill.

A Parliamentary Legal Advisor stated that the DoH had asked the legal advisers to look at the bill. They had informally advised the Department to include issues of trade , and this was the reason that the Bill had been regarded as a mixed Bill. It was then decided to split the Section 75 and 76 issues.

Ms M Madumise (ANC) asked for clarification on the issue of regulation.

Mr Mseleku stated that the Committee was dealing with the same Bill; although it had been split by Parliament it was essentially one Bill. The Bill had introduced a new age limit in respect of sale of cigarettes. 

The Acting Chairperson asked that those issues specifically before the Committee according to the Agenda now be addressed.

Mr Mseleku tabled a document detailing the response of the Department to some of the queries. He asked that the Committee consider the suggested wording as a solution to the comments raised around the definitions of packaging.
 
Mr Waters stated that the definition proposed did seem to cover the concerns of the industry. He asked if importers were not being excluded.

Ms Dudley addressed the concerns raised about letterheads and logos during the public submissions. She stated that this was a clear loophole and asked the Committee to consider the law as applied in Eire, contained in the Eire Law Document handed out, as a possible solution to close this loophole.
 
Dr Rabinowitz stated that the legislation had to be as specific as possible. She stated that “reasonable” was too ambiguous a phrase.
 
The Acting Chairperson reiterated that magazines for the communication of business issues inadvertently advertised to the public, and there was a need to close these loopholes.

The Acting Chairperson stated that the wording used in respect of “business partner” and “stakeholder” needed to be addressed. “Stakeholder” was too broad a term.

Mr Mseleku stated that the suggestions made by BAT suggestions would be useful.

Ms Dudley stated that the exemption in respect of logos and letterheads may give loopholes for trade magazines to be used as advertising. She suggested insertion of the words “in such circumstance” as used in the Irish law. She asked for the comment of the legal advisers on this.

Dr Rabinowitz stated that this wording did not make the legislation unambiguous. She suggested that communication could include publication with no pictures other than the logo. She believed that “stakeholder” should be replaced by “smoker” and that the legislation should include a reference to the situation where no pictures other than the logo were included in communication.

Mr Waters asked how this would impact on the point of sale.

The Acting Chairperson reiterated the suggestion to remove the word “stakeholders” and the need to include the wording “in such circumstance” to cover that loophole.

Dr Rabinowitz stated that she would like the legal advisers to comment.

The Acting Chairperson stated that the Committee had a sense of where it wanted to go. He asked that the issues of the Irish law, the suggestions by Philip Morris and BAT should be addressed in the next meeting.
 
Mr Mseleku drew the attention of the Committee to page 3, and the references to “organised activity”. He indicated that the words” what is likely” that were underlined had been targeted for removal. However, in the amended document the word “likely” remained.

Dr Rabinowitz said that the surge of goodwill promoting education, the arts and the like should not affected by this legislation, but that there should be caution that advertising should not be allowed through this promotion.

An official from the Department of Health referred to line 28 on page 3, and suggested that the current definition of packaging included wholesale, and that this should be removed. 

Ms Dudley asked if the large cardboard box that contained the cigarettes would be affected by this, and whether logos or names on such boxes would thus amount to advertising. 

Mr Mseleku appreciated the concerns of Ms Dudley but he expressed that DoH believed that  wholesale packaging would not be abused for advertising purposes.

Dr Rabinowitz stated that legislation should not be based on trust. She stated that the public must be protected from potential abuse.

Ms Dudley asked that the Committee flag the issue for further consideration and address the potential consequences of the wording in later discussions. She thought that removal of a reference to wholesale could open up whole new avenues of communication to retailers.

Ms Zanele Mthembu, Director: Health Promotion, DoH,  stated that in regard to subsection 6 it made sense to include wholesalers.

Mr Mseleku suggested that the outside boxes should be kept blank, with just the brand name printed on them.

Mr Waters said that he understood the industry’s concerns that the contents of the boxes needed to be identified at the wholesale level, but stated that the box should be just a simple name without any branding.

Ms Dudley said that if wholesale was excluded a new clause regulating the advertising on these packages must be included.

The Acting Chairperson suggested just keeping the original definition.

Mr Mseleku stated that the definition fell within that of a package.

The Acting Chairperson asked for consensus from Members to exclude the word wholesale.

Ms Dudley asked if the legal advisers could address how this would impact on regulation.
 
Dr Rabinowitz asked for an explanation as to what problems could be created by leaving in the word wholesale.

Mr Mseleku explained that if the word wholesale was included then the prescribed labelling on health warnings must be included on the boxes. If wholesale was included then he agreed that the issue of health warnings should be addressed.

Ms R Mashigo (ANC) asked for comment on the effects on domestic workers of other people smoking in the workplace.

Mr Mseleku reminded her that this had been dealt with in the other part of the Bill.

The Acting Chairperson stated that page 4 would be dealt with as a whole.

Mr Waters commented that the issue of contributions must be dealt with.

Mr Mseleku stated that the reference to “anonymously” could be changed, as long as such donations would not be used a platform for promotion. However a formulation of the new wording had not been finalised so that it fell in line with the FICA legislation.

Ms Dudley suggested the creation of a fund to deal with the problems around anonymity.

Mr Waters stated that he thought that the majority of the Committee was agreed that the industry may give contributions, but may not promote any brand in this endeavour.

Ms Kalyan stated that she too understood that the Committee was in agreement that the good work being done should be acknowledged. She thought, however, that a better term could be used to replace “anonymously”.

Ms Madumise asked for clarification as to whether the principle of anonymity related to donor and receiver, or the public.

The Acting Chairperson replied that it referred to the public.

Ms Mashigo stated that it was stated during the public hearings that some industries did donate anonymously.

The Acting Chairperson said that there were no comments needed in respect of issues on pages four and five. He commented that in regard to the “point of sale” the National Council against Smoking had suggested a ban on vending machines.

Mr Mseleku noted that in relation to Clause 7, line 52 of the document (amendment of Section 6 of the principle Act), the DoH had proposed deletion of the references to markings that could help to identify illegally manufactured or distributed products on which tax had not been paid. It was feared that there was a danger that if the DoH were to become involved this might conflict with what was being done by South African Revenue Services (SARS).

Ms Dudley would not like to see this simply being deleted without obtaining some acknowledgment that SARS would deal with these issues. She asked that the Committee agree formally to request SARS to deal with this.

The Acting Chairperson suggested that it might be possible for other processes to address these issues. He was concerned that if the Committee were to make a formal request this might cause problems.

Ms Dudley asked if it could be noted that the Department of Health would then address the issue.

Mr Mseleku gave an assurance to the Committee that the Department would deal with this; there was no need for the Committee to formalise the issue.

Mr Waters asked if each company may have an advertisement at the point of sale, or if this was left to the market.

Ms Mashigo stated that the Committee’s primary function was not to decide around competition and marketing of the industry, but to consider the health of the public.

Mr Waters clarified that the advertising at point of sale was limited to one sign per tobacco product, of one square metre.

Mr Mseleku noted that the discussions around visual displays demonstrated the difficulties of regulation. There were differing interpretations being given to regulations around the “point of sale” advertising. It was important to leave this to regulation rather than trying to prescribe it in the Act.

The Acting Chairperson asked for the Committee to direct its attention to Clause 7 (a)(i) to (iv).

Dr Rabinowitz stated that the principle that all regulations be referred to the Committee should be included.

The Acting Chairperson stated that regulations were an Executive function. However, he asked for agreement that the Committee should be briefed by the Department in relation to proposed regulation.

Mr Mseleku stated that, in the same spirit that the Department was required by law to publish all regulations, the Department would be happy to submit the regulations to the Committee when it was ready to publish.

The Acting Chairperson requested that this be done, and that the proposed regulations must be placed before the Committee at the time that they were prepared for publication.

The Acting Chairperson asked for comment on the views expressed by Japan Tobacco Industry (JTI) about the sale of products at universities, in relation to clause 4(4) of the Bill.

Mr Mseleku confirmed that at sale of tobacco products was forbidden at any place where there would be those under-18 and this would include universities and other education or training establishments.

The Acting Chairperson stated that the rest of the issues would be discussed in the next meeting on the following Tuesday next week.

The meeting was adjourned.