Act No.
12,1999 TOBACCO PRODUCTS CONTROL AMENDMENT ACT, 1999
GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets indicate omissions
from existing enactments.
_____ Words underlined with a solid line indicate insertions in existing
enactments.
(English text signed by the President.)
(Assented to 14 April 1999.)
ACT
To amend the Tobacco Products Control Act, 1993, so as to amend and insert
certain definitions; to provide for the prohibition of advertising and
promotion of tobacco products; to provide further, for the prohibition of
advertising and promotion of tobacco products in relation to sponsored events;
to prohibit the free distribution of tobacco products and the receipt of gifts
or cash prizes in contests, lotteries or games to or by the purchaser of a
tobacco product in consideration of such purchase; to provide for the
prescription of maximum yields of tar, nicotine and other constituents in
tobacco products;to increase fines; and to provide for matters connected
therewith.
BE IT THEREFORE, ENACTED by the Parliament of the Republic of South
Africa, as follows:-
Insertion of Preamble in Act 83 of 1993
The following preamble shall be inserted in the Tobacco Products Control Act,
1993 (hereinafter referred to as the principal Act);
"PREAMBLE
ACKNOWLEDGING that tobacco use-
is extremely injurious to the health of both smokers and non-smokers and
warrants, in the public interest, a restrictive legislation; is a widely
accepted practice among adults, which makes it inappropriate to ban completely;
REALISING that the association of smoking with social success,
business advance ment and sporting prowess through the use of advertising and
promotion may have the particularly harmful effect of encouraging children and
young people to take up smoking;
CONSIDERING that the extent of the effects of smoking on
health calls for strong action to deter people from taking up smoking
and to encourage existing smokers to give up smoking; and
RESOLVING to align the health system with the democratic
values of the Constitution and to enhance and protect the fundamental rights of
citizens by discouraging the use, promotion and advertising of tobacco products
in order to reduce the incidence of tobacco-related illness and death;".
Amendment of section 1 of Act 83 of 1993
Section 1 of the principal Act is hereby amended-
by the substitution for the definition of "advertisement" of the
following definition:
" ‘advertisement’, in relation to any tobacco product, means any [statement,
communication, representation or reference distributed to members of the
public or brought to their notice in any other manner and which is intended]
drawn, still or moving picture, sign, symbol, other visual image or
message or audible message aimed at the public and designed to promote [the
sale of such] or publicise a tobacco product or [encourage the
use thereof or draw attention to the nature, properties, advantages or
uses thereof to promote smoking behaviour and includes the use in any
advertisement or promotion aimed at the public of a tobacco product
manufacturer’s company name where the name or any part of the name is used as
or is included in a tobacco product trade mark, and ‘advertise’ has a
corresponding meaning;";
by the insertion after the definition of "advertisement" of the
following definition:
" ‘Constitution’ means the Constitution of the Republic of South
Africa, 1996 (Act No. 108 of 1996);";
by the substitution for the definition of "hazardous constituent" of
the following definition:
" ‘constituent’, in relation to any tobacco product, means nicotine,
tar and any other constituent of a tobacco product or of tobacco smoke which
the Minister may by notice in the Gazette declare to be a constituent
for the purposes of this Act;";
by the substitution for the definition of "Director-General" of the
following definition:
" ‘Director-General’ means the Director-General: [National] Health [and
Population Development];";
by the insertion after the definition of "Director-General" of the
following definition:
" ‘employed’ or ‘employment’ means employed or employment as an employee
as defined in section 1 of the Basic Conditions of Employment Act, 1997 (Act
No. 75 of 1997);";
by the substitution for the definition of "Minister" of the following
definition:
" ‘Minister’ means the Minister of [National] Health;";
by the insertion after the definition of "officer" of the following
definition:
" ‘organised activity’-
means any activity or event-
which the public attend or participate in;
which is organised for the purposes of entertainment, sport or recreation or
for educational or cultural purposes; and
where a tobacco product, or brand name, trade mark, logo or company name in
relation to a tobacco product, is used in the name of or portrayal of the
activity or event; but
excludes any private activity or event arranged by a manufacturer, importer,
distributor or retailer of a tobacco product where only its shareholders or its
employees or their spouses or partners attend;";
by the insertion after the definition of "prescribe" of the following
definition:
" ‘private dwelling’ means any part of-
any room or apartment of a building or structure which is occupied as a
residence; or
any building or structure or outdoor living area which is accessory to, and
used wholly or principally for, residential purposes;";
by the substitution for the definition of "public place" of the
following definition:
" ‘public place’ means any indoor or enclosed area which is open to
the public or any part of the public and includes a workplace and a
public conveyance;";
(") by the substitution for the definition of "smoke" of the following
definition:
" ‘smoke’ [includes sniff, suck, or chew a tobacco product, and also
have] means to inhale, exhale, hold or otherwise have control
over an ignited tobacco product [or any device containing an ignited tobacco
product], weed or plant, and ‘smoked’ and ‘smoking’ have
corresponding meanings;";
by the substitution for the definition of "tobacco product" of the
following definition:
" ‘tobacco product’ means any product manufactured from tobacco and
intended [to be smoked] for use by smoking, inhalation, chewing,
sniffing or sucking;";
by the insertion after the definition of "tobacco product" of the
following definition:
‘trade mark’ includes-
any mark whether registered or registrable for trade purposes or any recognised
version thereof that is likely to be taken as, or confused with, that trade
mark;
certification trade mark or collective trade mark; and ‘trade mark’ as
defined in section 1 of the Trade Marks Act, 1993 (Act 20 No. 194 of
1993);";
by the insertion after the definition of "trade mark" of the
following definition:
" ‘workplace’-
means any indoor or enclosed area in which employees perform the duties of
their employment; and
includes any corridor, lobby, stairwell, elevator, cafeteria, washroom or
other common area frequented by such employees during the course of their
employment; but
excludes any private dwelling, and any portion of an area mentioned in
paragraph (a) specifically designated by the employer as a smoking area and
which complies with the prescribed requirements.".
Amendment of section 2 of Act 83 of 1993
Section 2 of the principal Act is hereby amended-
by the substitution for subsection (1) of the following subsection:
"(1)(a) The smoking of tobacco products in any public place is
prohibited.
(b) Notwithstanding the provisions of subsection (l)(a), the Minister may by
notice in the Gazette declare specified public places permissible smoking
areas, subject to any conditions that may be specified in such notices.
(c) Notwithstanding the fact that a private dwelling is excluded from the
definition of "workplace", if a private dwelling is used for
commercial child care activities or for schooling the smoking of tobacco
products in such dwelling or on the terrain of such dwelling is prohibited,
except in an area of the private dwelling which is specifically designated by
the employer, owner, tenant or possessor as a smoking area and which complies
with the prescribed requirements.";
by the substitution for subsection (2) of the following subsection:
"(2) The Minister may at the request of any local authority, but
subject to subsection (3), grant any or all of his or her powers
contemplated in subsection (1) to such local authority.";
by the insertion after subsection (5) of the following subsections:
"(6) A local authority which has made regulations relating to the
control of smoking in public places in terms of this Act shall have the power,
duty and obligation to enforce the regulations in its area of jurisdiction.
(7) A local authority which has not made regulations relating to the control
of smoking in public places in terms of this Act shall have the power, duty and
obligation to enforce any national regulations in connection therewith in its
area of jurisdiction.".
Substitution of section 3 of Act 83 of 1993
4. The following section is hereby substituted for section 3 of the
principal Act:
"Advertising, sponsorship, promotion and required information in
respect of packages of tobacco products
3. (1) No person shall-
advertise, including the use of tobacco trade marks, logos, brand names or
company names used on tobacco products; or
use tobacco trade marks, logos, brand names or company names used on tobacco
products for the purposes of advertising any organisation, service activity or
event.
(2) No manufacturer, importer, distributor or retailer of tobacco products
shall-
organise or promote any organised activity that is to take place in whole or
in part in the Republic;
make any financial contribution to any organised activity that is to take
place, or is taking place, or has taken place in whole or in part in the
Republic;
make any financial contribution to any person in respect of-
the organisation or promotion of any organised activity in the Republic by
that person;
the participation, by that person, in any organised activity that is to take
place, or is taking place in whole or in part, in the Republic.
(3) A retailer of tobacco products may post in accordance with the
regulations passed in relation to this Act, signs at the point of sale that
indicate the availability of tobacco products and their price.
(4) No person shall sell or import for subsequent sale any prescribed
tobacco product, unless-
such product is in a package;
the package in which the tobacco product is sold bears the prescribed
warning concerning the health hazards incidental to the smoking of tobacco
products; and
the quantities of the constituents present in the tobacco product concerned
are stated on the package.
(5) Notwithstanding the provisions of section 3, the Minister may, by
regulations, provide for exemptions for unintended consequences or the phasing
out of existing sponsorship or contractual obligations.".
Insertion of section 3A in Act 83 of 1993
The following section is hereby inserted after section 3 of the principal Act:
"Maximum yields of tar and other constituents in a tobacco product
3A. The Minister may, by notice in the Gazette, declare
the maximum permissible levels of tar, nicotine and other constituents which
tobacco products may contain and the maximum yield of any such substance that
may be obtained therefrom.".
Amendment of section 4 of Act 83 of 1993
Section 4 of the principal Act is hereby amended by the deletion of subsection
(2) and subsection (3).
Insertion of section 4A in Act 83 of 1993
The following section is hereby inserted after section 4 of the principal Act:
"Free distribution and reward prohibited
4A. (1) No manufacturer, distributor, importer or retailer of a
tobacco product shall for free, or at a reduced price, other than a normal
trade discount-
distribute any tobacco product; or
supply any tobacco product to any person for subsequent distribution.
(2) No person shall offer any gift, cash rebate or right to participate in
any contest, lottery or game, to any person in consideration of the purchase of
a tobacco product, or the furnishing of evidence of such a purchase.".
Amendment of section 5 of Act 83 of 1993
Section 5 of the principal Act is hereby amended-
by the substitution for subsection (1) of the following subsection:
"(1) The sale of tobacco products from vending machines shall be
restricted to places in which purchases from such machines are inaccessible to
persons under the age of sixteen years.";
by the substitution for subsection (2) of the following subsection:
"(2) It shall be the responsibility of any person during such time as
he or she is responsible for or has control of the premises in which any
vending machine is kept to ensure that no person under the age of sixteen years
makes use of any such machine.";
by the deletion of subsection (4).
Substitution of section 7 of Act 83 of 1993
The following section is substituted for section 7 of the principal Act:
"Offences and penalties
7. (1) Any person who contravenes or fails to comply with any notice issued
in terms of section 2 (1) shall be guilty of an offence and liable on
conviction to a fine not exceeding R200 or to such penalties as may be
determined.
(2) Any person who contravenes or fails to comply with the provisions of
section 4( 1) or 5 shall be guilty of an offence and liable on conviction to a
fine not exceeding RIO 000 or to such imprisonment as may be determined.
(3) Any person who contravenes or fails to comply with the provisions of
section 3 or 4A or any notice issued in terms of section 3A shall be guilty of
an offence and liable on conviction to a fine not exceeding R200 000 or to such
imprisonment as may be determined.".
Extension and application of Act 83 of 1993
The Tobacco Products Control Act, 1993, and all amendments thereof shall apply
throughout the Republic.
Short title and commencement
(1) This Act shall be called the Tobacco Products Control Amendment Act, 1999,
and shall come into operation on a date fixed by the President by proclamation
in the Gazette.
(2) Different dates may be fixed in respect of different provisions of this
Act.