TOBACCO BILL: HEARINGS UNDER SIXTH PARLIAMENT ‘LEGALLY VALID’

TOBACCO BILL: HEARINGS UNDER SIXTH PARLIAMENT ‘LEGALLY VALID’

• 28 October 2024
• Parliament
• SA Legal Academy

The Department of Health included the National Economic Development & Labour Council (Nedlac) in broader consultations on the draft Tobacco Products & Electronic Delivery Systems Control Bill before it was tabled in Parliament. On that basis:

• the department has fulfilled its obligations under the Nedlac Act, 1994, and
• a public participation process undertaken by the previous committee under the sixth Parliament is therefore ‘legally valid’.

This is according to an opinion from Parliament’s acting chief law adviser, Frank Jenkins – and noting that:

• the Bill lapsed when Parliament rose for the May elections
• has since been revived, and that
• concerns about the pre-tabling consultation process among some members of the new committee prompted its request for a legal opinion.

The opinion focuses on section 5(1)(d) of the Nedlac Act, which requires the council to ‘consider all significant changes to social and economic policy’ before implementation or introduction in Parliament. However, in Jenkins’ view, while the Act ‘places an onus on Nedlac to “consider” significant changes to policy … (it) does not use the word “consult”’. Neither does the Act require a department ‘to be bound by any discussions’ that may then take place in Nedlac itself. This is bearing in mind that Nedlac is bound by the Act to consider and discuss all proposed new labour legislation in depth – but is apparently not obliged to subject any other legislative or policy change to the same process. It may nevertheless choose to do so.

A media statement since issued by the new committee has confirmed that – in the light of this opinion – members are ‘satisfied’ that the department ‘met the necessary requirements’. The committee will therefore ‘proceed with the remaining public hearings’ before further considering the Bill.

Intended to align tobacco control law with 2017 WHO Framework Convention requirements, the proposed new piece of legislation seeks, among other things, to:

• make indoor public places and certain outdoor areas 100% smoke-free
• ban the sale of cigarettes through vending machines
• make plain packaging with graphic health warnings and pictorials mandatory
• ban the display of tobacco products at points-of-sale, and
• include electronic nicotine delivery systems and non-nicotine delivery systems in the regulation and control of tobacco products.

While the Bill’s positive implications for public health were acknowledged during nationwide hearings under the sixth Parliament, concerns were expressed about its possible negative impact on tobacco industry revenue generation and the livelihood of small-scale traders in legitimate tobacco products. An earlier SA Legal Academy report (to which a link is provided below) includes more insight into the views articulated.

• legal opinion
• committee media statement
• Bill
• WHO framework convention
• Nedlac Act
• SA Legal Academy report

Published by SA Legal Academy Policy Watch

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