Amendments to the Tobacco Products Control Act of 1993

Adv Patricia Lambert

Director: International Legal Consortium Campaign for Tobacco-Free Kids

Washington, D.C

My Background

• Three years as a legal consultant in the Ministry of Justice

• Seven years at a legal adviser in the South African Ministry of Health

• Assisted with the implementation of domestic tobacco control legislation

• Chief Negotiator for South Africa: the WHO Framework Convention on Tobacco Control (2000 - 2005)

Process so far …

2003 - First draft of the amendments• Published for public comment• Meetings held with all stakeholders, including the

tobacco industry

2004 and 2005 - Redrafting

2006 - State Law Advisers & - Parliamentary Tagging Committee

The Product

• Tobacco products - all of them - are the only products which, if used precisely as the manufacturer intends, will cause the user, and others, death, disease and disability.

‘Risky’ or ‘Dangerous’

2006 US Court Case

• The US government sued the tobacco industry (1999)

• Judge Gladys Kessler - 1,683 pages • For 50 or more years the industry lied to everyone• “This case is about an industry … that survives,

and profits, from selling a highly addictive product which causes diseases that lead to a staggering number of deaths per year, an immeasurable amount of human suffering and economic loss, and a profound burden on our national healthcare system.”

2006 US Court Case

The industry reacted by approaching the judge for clarification:

Could they still export products labelled ‘light’, ‘mild’, etc?

They are seeking permission to export their lies to the developing world.

FCTC - Preamble

“… Scientific evidence has unequivocally established that tobacco consumption and exposure to tobacco smoke cause death, disease and disability, and that there is a time-lag between exposure to smoking and other uses of tobacco products and the onset of tobacco-related diseases,”

History of the FCTC

1980s/90s: Recognition of consequences of growing tobacco epidemic

:World Health Assembly resolutions

Oct 2000: Negotiations begin and 192 countries participate

Mar 2003: Negotiations are concludedJun 2003: Treaty opens for signature and

ratification

Importance of the FCTC

• In 54 years of existence, the WHO makes no treaties

• The death, disease and disability caused by tobacco products are entirely preventable

• Enormous cost to public health-care especially in developing countries

Preamble to the FCTC

“Reflecting the concern of the international community about the devastating worldwide health, social, economic and environmental consequences of tobacco consumption and exposure to tobacco smoke;”

Preamble to the FCTC

“Seriously concerned about the increase in the worldwide consumption and production of cigarettes and other tobacco products, particularly in developing countries, as well as about the burden that this places on families, on the poor, and on national health systems;”

Tobacco Control in South Africa

ANC Health Policy

Dealt firmly with substance abuse, including tobacco and nicotine

ANC Government (1994 - 1999)

Enacts strong tobacco control legislation

South Africa becomes a regional and international leader in tobacco control

Industry Reaction

1998 Portfolio Committee Hearings (tobacco industry claims)

• Over-regulation• Insufficient consultation by the DoH• Proposed legislation unconstitutional• Driving the tobacco industry out of business• Damaging the advertising & media industries • Damaging the hospitality industry• Damaging sporting codes like soccer, horse-racing,

cricket …• Causing massive job loss• Decreasing government’s tax base

The Constitution

• The power to regulate trade - Section 32

• The obligation to protect health - Section 24 Every person has the right to an environment

that is not damaging to their health or well-being

• The balancing of rights and obligations

Job Losses

• People employed by the tobacco industry: 1986 - 74,000 1996 - 35,000

• This represents a loss of 39,000 jobs over a ten-year period before strict regulation was introduced

Reason? Mechanisation

Tobacco Farmers I

• South Africa 1986: 1500 producers• South Africa 1995:700 producers

In the ten-year period before strict tobacco control measures were implemented 800 farmers stopped producing tobacco.

Why?

Industry imports cheaper tobacco

Taxation I

• The tobacco industry does not contribute R8 million to the tax base in South Africa

• Smokers in South Africa do

• The industry merely collects the tax and passes it on to government

• Money in people’s pockets can be spent elsewhere. It doesn’t ‘disappear’.

Taxation II

• From 1997 until 2004 - seven years - the tax on tobacco products was 50% of the price of the product

• In 2005, that was increased to 52%

Issue: the price of the product is set by the industry, not government. So, if the industry wants bigger profits it increases the price of the product. Therefore, the industry drives the tax upwards and not government

Illicit Trade I

• Tobacco companies are active in illicit trade• 1997 London trial: Rembrandt Group and

Philip Morris in South Africa• 2006 - SARS and SAPS raid on Mastermind -

a legal tobacco company operating in South Africa. The company is accused of R48 million tax fraud – round-tripping

• 2005 - EU-Philip Morris settlement for $1.25 billion

Illicit Trade II

• By definition, illicit trade is illegal. It is against the law.

• There are legal provisions elsewhere in the South African system to deal with illicit trade in all products, including tobacco

• The proposed amendments to the Act that is before this Committee deal with health.

Tobacco Farmers II

• Malawi - The Poverty Trap• 13 Sep 2006 Tobacco Journal International• Burley sold for:

$1.60 in 1996 $1.22 in 2003 $0.99 in 2005 $0,83 in 2006

• Cost of production = $1.22

Stakeholder Consultation

Consultation does not mean agreement.

Loopholes - Advertisement

Loopholes: Public Places

• The Act prohibits smoking in public places and workplaces

• The Minister creates exceptions

• Exceptions abused by hospitality and casino industries

• Semi-enclosed areas, like patios and pavements, set aside exclusively for smokers

Ratification of the FCTC

• 40 ratifications necessary to bring the treaty into force

• 40 ratifications achieved in just 29 months• Currently 143 of the 192 Member States of the

WHO have ratified the treaty - 75%• Another 25 countries have signed but not yet

ratified• South Africa ratified the treaty in April 2005

Ratification: Legal Perspective

When a country ratifies an international treaty, the provisions of the treaty are incorporated into the domestic law of that country.

Therefore, the country is legally bound by the all of the terms of the treaty.

FCTC Article 2.1

“In order to better protect human health, Parties are encouraged to implement measures beyond those required by the Convention and its protocols, and nothing in these instruments shall prevent a Party from imposing stricter requirements that are consistent with their provisions and are in accordance with international law”

FCTC - Taxation

Article 6.1

“The Parties recognize that price and tax measures are an effective and important means of reducing tobacco consumption by various segments of the population, in particular young persons.”

FCTC - Taxation

Article 6.2

“… each Party should take account of its national health objectives concerning tobacco control and adopt or maintain, as appropriate, measures which may include:

(a) … tax and price policies so as to contribute to health objectives aimed at reducing tobacco consumption … ”

FCTC - Contents

Article 9

“The Conference of the Parties, in consultation with competent international bodies, shall propose guidelines for testing and measuring the contents and emissions of tobacco products, and for the regulation of these contents and emissions… ”

FCTC - Contents

Article 9

“… Each Party shall, where approved by competent national authorities, adopt and implement effective legislative, executive and administrative or other measures for such testing or measuring, and for such regulation.”

FCTC - Product Disclosures

Article 10

“Each Party shall … adopt and implement effective legislative, executive, or other measures requiring manufacturers and importers of tobacco products to disclose to governmental authorities information about the contents and emissions of tobacco products.”

FCTC - Illicit Trade

Article 15

• Tracking and tracing• Monitoring and collecting data on cross-

border trade, including illicit trade• Passing legislation• Storage• Confiscation of proceeds from illicit trade

FCTC - Second-hand Smoke

Article 8

The Conference of the Parties has mandated a working group to propose guidelines

FCTC - Manufacturing Standards

• Article 4.3

• Article 5.5

• Article 5.6

Comparison with the pharmaceutical industry

FCTC - The Industry

Article 5.3

“In setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry …”

FCTC - NGOs

Article 4.7

“The participation of civil society is essential in achieving the objective of the Convention and its protocols.”

Snus

• Snus is a tobacco product

• Snus contains nicotine

• If it looks like a duck, and it quacks like a duck it IS a duck.

Snus

Most nicotine is either in tobacco products or replacement therapies.

NRT - is used to reduce nicotine dependency and aid in cessation

Snus - is used to maintain dependency and addiction

‘Organised Activity’

FCTC - Political Will

Article 4.2

“Strong political commitment is necessary to develop and support, at the national regional and international levels, comprehensive multisectoral measures and coordinated responses… ”

Thank you