[ASSENTED
TO 23 JUNE 1993] [DATE OF COMMENCEMENT: 1
FEBRUARY 1994]
(English
text signed by the State President)
as amended by General Law Fifth Amendment Act 157 of 1993
Tobacco
Products Control Amendment Act 12 of 1999
Regulations
under this Act
NOTICE
RELATING TO SMOKING OF TOBACCO PRODUCTS IN PUBLIC PLACES
NOTICE
RELATING TO THE MAXIMUM PERMISSIBLE YIELD OF TAR, NICOTINE AND OTHER
CONSTITUENTS IN TOBACCO PRODUCTS
REGULATIONS RELATING TO PROVISION FOR EXEMPTION FOR UNINTENDED CONSEQUENCES AND THE PHASING OUT OF EXISTING SPONSORSHIP OR CONTRACTUAL OBLIGATIONS
REGULATIONS
RELATING TO THE POINT OF SALE OF TOBACCO PRODUCTS
REGULATIONS
RELATING TO THE LABELLING, ADVERTISING AND SALE OF TOBACCO PRODUCTS ACT
To prohibit
or restrict smoking in public places; to regulate the sale and advertising of
tobacco products in certain respects and to prescribe what is to be reflected
on packages; and to provide for matters connected therewith.
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 advancement 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;
[Preamble
inserted by s. 1 of Act 12 of 1999.]
BE IT ENACTED by the State President
and the Parliament of the Republic of South Africa, as follows:-
[a83y1993s1]1 Definitions
In this Act, unless the context
otherwise indicates-
'advertisement', in relation to any
tobacco product, means any drawn, still or moving picture, sign, symbol, other
visual image or message or audible message aimed at the public and designed to
promote or publicise a tobacco product or 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;
[Definition
of 'advertisement' substituted by s. 2 (a) of Act 12 of 1999.]
'Constitution' means the
Constitution of the Republic of South Africa, 1996 (Act 108 of 1996);
[Definition
of 'Constitution' inserted by s. 2 (b) of Act 12 of 1999.]
'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;
[Definition
of 'constituent', previously definition of 'hazardous constituent', substituted
by s. 2 (c) of Act 12 of 1999.]
'Director-General' means the
Director-General: Health;
[Definition
of 'Director-General' substituted by s. 2 (d) of Act 12 of 1999.]
'employed' or 'employment' means
employed or employment as an employee as defined in section 1 of the Basic
Conditions of Employment Act, 1997 (Act 75 of 1997);
[Definition
of 'employed' or 'employment' inserted by s. 2 (e) of Act 12 of 1999.]
'local authority' means any
institution or body established by or under any law with a view to performing
local government functions in respect of a particular area or region;
'Minister' means the Minister of
Health;
[Definition
of 'Minister' substituted by s. 2 (f) of Act 12 of 1999.]
'nicotine' means nicotine alkaloids;
'officer' means an officer in the
Department of National Health and Population Development mentioned in section
5;
[Definition
of 'officer' amended by s. 9 (a) of Act
157 of 1993.]
'organised activity'-
(a) means any activity or event-
(i) which the public attend or participate
in;
(ii) which is organised for the purposes of
entertainment, sport or recreation or for educational or cultural purposes; and
(iii) 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
(b) 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;
[Definition
of 'organised activity' inserted by s. 2 (g) of Act 12 of 1999.]
'package' means any packing, carton,
wrapping or any other container in which tobacco products are generally sold by
retail;
'prescribe' means prescribe by
regulation under this Act;
'private dwelling' means any part
of-
(a) any room or apartment of a building or
structure which is occupied as a residence; or
(b) any building or structure or outdoor
living area which is accessory to, and used wholly or principally for,
residential purposes;
[Definition
of 'private dwelling' inserted by s. 2 (h) of Act 12 of 1999.]
'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;
[Definition
of 'public place' substituted by s. 2 (i) of Act 12 of 1999.]
'smoke' means to inhale, exhale,
hold or otherwise have control over an ignited tobacco product, weed or plant,
and 'smoked' and 'smoking' have corresponding meanings;
[Definition
of 'smoke' substituted by s. 2 (j) of Act 12 of 1999.]
'tar' means the anhydrous and nicotine-free
condensate of the smoke of a tobacco product;
'this Act' includes a regulation
made under this Act; and
'tobacco product' means any product
manufactured from tobacco and intended for use by smoking, inhalation, chewing,
sniffing or sucking;
[Definition
of 'tobacco product' substituted by s. 2 (k) of Act 12 of 1999.]
'trade mark' includes-
(i) 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;
(ii) certification trade mark or collective
trade mark; and
(iii) 'trade mark' as defined in section 1 of
the Trade Marks Act, 1993 (Act 194 of 1993);
[Definition
of 'trade mark' added by s. 2 (l) of Act 12 of 1999.]
'workplace'-
(a) means any indoor or enclosed area in
which employees perform the duties of their employment; and
(b) includes any corridor, lobby, stairwell,
elevator, cafeteria, washroom or other common area frequented by such employees
during the course of their employment; but
(c) 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.
[Definition
of 'workplace' added by s. 2 (m) of Act 12 of 1999.]
[a83y1993s2]2 Control over smoking of tobacco products
(1) (a) The smoking of tobacco
products in any public place is prohibited.
(b) Notwithstanding the provisions
of subsection (1) (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.
[Sub-s. (1)
substituted by s. 3 (a) of Act 12 of 1999.]
(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.
[Sub-s. (2)
substituted by s. 3 (b) of Act 12 of 1999.]
(3) A power contemplated in
subsection (1) shall not be granted to a local authority under subsection (2)
in respect of-
(a) a public place owned by the State or
which is occupied by officers or employees in the employment of the State; or
(b) such other public places or particular
kinds of public places as the Minister may determine by notice in the Gazette.
(4) When a local authority issues
regulations by virtue of subsection (2), it shall do so by notice in the
Official Gazette.
(5) The Minister may issue
regulations prescribing conditions to which the exercise of a power by a local
authority in terms of subsection (2) shall be subject.
(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.
[Sub-s. (6)
added by s. 3 (c) of Act 12 of 1999.]
(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.
[Sub-s. (7)
added by s. 3 (c) of Act 12 of 1999.]
[a83y1993s3]3 Advertising, sponsorship, promotion and
required information in respect of packages of tobacco products
(1) No person shall-
(a) advertise, including the use of tobacco
trade marks, logos, brand names or company names used on tobacco products; or
(b) 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-
(a) organise or promote any organised
activity that is to take place in whole or in part in the Republic;
(b) 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;
(c) make any financial contribution to any
person in respect of-
(i) the organisation or promotion of any
organised activity in the Republic by that person;
(ii) 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-
(a) such product is in a package;
(b) 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
(c) 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.
[S. 3
substituted by s. 4 of Act 12 of 1999.]
[a83y1993s3A]3A Maximum yields of tar and other
constituents in a tobacco product
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.
[S. 3A
inserted by s. 5 of Act 12 of 1999.]
[a83y1993s4]4 Prohibition of sale of tobacco products to
persons under age of 16 years
(1) No person shall sell or supply
any tobacco product to any person under the age of 16 years, whether for his
personal use or not.
(2) and (3) ......
[Sub-ss.
(2) and (3) deleted by s. 4 of Act 12 of 1999.]
[a83y1993s4A]4A Free distribution and reward
prohibited
(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-
(a) distribute any tobacco product; or
(b) 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.
[S. 4A
inserted by s. 7 of Act 12 of 1999.]
[a83y1993s5]5 Restrictions on use of vending-machines
(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.
[Sub-s. (1)
substituted by s. 8 (a) of Act 12 of 1999.]
(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.
[Sub-s. (2)
substituted by s. 8 (b) of Act 12 of 1999.]
(3) The Director-General may in
writing direct the owner of the vending-machine in question or the person in
control thereof-
(a) to take such precautionary measures as
are specified in the direction to prevent the vending-machine being used by
persons under the age of 16 years; or
(b) to remove the vending-machine from the
premises within the period specified in the direction.
(4) ......
[Sub-s. (4)
deleted by s. 8 (c) of Act 12 of 1999.]
[a83y1993s6]6 Regulations
(1) The Minister may make
regulations regarding-
(a) the manner and form in which information
contemplated in section 3 is to be reflected on the package of a tobacco
product or in which it is to appear in any advertisement of such product;
[Para. (a)
amended by s. 9 (b) of Act 157 of 1993.]
(b) the manner or method of determining the
quantities of hazardous constituents in tobacco products;
(c) the properties of a tobacco product, the
claims in respect of such product and the representations in respect of the use
thereof that may not appear in any advertisement;
(d) the returns, reports and other
information to be furnished to the Director-General by manufacturers and
importers of tobacco products;
(e) any other matter required or permitted
to be prescribed in terms of a provision of this Act to achieve the objects of
this Act.
(2) Regulations made under
subsection (1) (b) may prescribe for the determination of the quantities of
hazardous constituents in tobacco products any manner or method set out in a
publication which in the opinion of the Minister is generally recognized as
authoritative.
(3) The Minister shall, not less
than three months before issuing any regulation under this Act, cause a draft
of the regulation to be published in the Gazette, together with a notice
declaring his intention to issue such a regulation and inviting interested
persons to furnish him with any comments thereon or representations in
connection therewith within a specified period.
(4) The provisions of subsection (3)
shall not apply in respect of-
(a) a regulation which, after the provisions
of the said subsection have been complied with, has been amended by the
Minister in consequence of comments or representations received by him in
pursuance of the notice published in terms of the said subsection;
(b) any regulation in respect of which the
Minister is of the opinion that it is in the public interest that it be issued
without delay.
[a83y1993s7]7 Offences and penalties
(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 R10 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.
[S. 7
amended by s. 9 of Act 157 of 1993 and substituted by s. 9 of Act 12 of 1999.]
[a83y1993s8]8 Short title and commencement
(1) This Act shall be called the
Tobacco Products Control Act, 1993, and shall come into operation on a date
fixed by the State President by proclamation in the Gazette.
(2) Different dates may under
subsection (1) be fixed in respect of different provisions of this Act.