Smoking and the law

By Anton Katz SC

In the past while, after a two year Covid-enforced absence, my young boys and I have returned to watching rugby (the Stormers and Western Province) live at Cape Town Stadium in Green Point.

It has been fantastic. We have loved and enjoyed every moment, especially because the Stormers are doing well. But just being able to share the fresh air and positive energy at the matches has been great. And rugby crowds — unlike those at soccer matches — are famously friendly and jovial. 

What triggered this piece is that I recall in the 70s and into the 80s attending Newlands rugby with my dad and thoroughly enjoying myself. Obviously, many things have changed in the past forty years. One of them is the current ban on smoking at the matches. In the 80s, fans could smoke anywhere and as much they liked. But today smoking anywhere inside the stadium is absolutely prohibited. Of course, there are, and I guess will always be, a few silly spectators who light up during the match much to the annoyance of those around them. 

These thoughts triggered this piece about smoking and the law. What are the laws regarding smoking and what do they say? An absolute ban on smoking (cigarettes or tobacco products) would be an unjustifiable violation of constitutional rights, and would be invalid. Just like the absolute ban/prohibition on the use of marijuana was held to be invalid by the Constitutional Court, as I discussed in an earlier issue of the Chronicle in October 2019. (click here to read)

In regular times (that is, in the non-Covid-19 pandemic lock-down situation) the regulation of tobacco use is mainly contained in a law called the Tobacco Products Control Act of 1994. The Tobacco law has been amended a number of times. Each time the law imposes greater restrictions on the advertising, sale, and use of tobacco products. The main purpose of the law is stated to be: to prohibit or restrict smoking in public places; to regulate the sale and advertising of tobacco products and to prescribe what is to be reflected on packages. The Tobacco Act states that it is recognised that smoking is extremely injurious to the health of smokers, non-smokers and other users of tobacco products; has caused widespread addiction in society; warrants, in the public interest, a restrictive legislation. 

It further states that the association of the use of tobacco products with social success, business advancement and sporting prowess through advertising and promotion may have the particularly harmful effect of encouraging children and young people to use tobacco products; and that the extent of the harmful effects of the use of tobacco products on health calls for strong action to deter people, especially the youth, from using tobacco products, to protect non-smokers from exposure to tobacco smoke and to encourage existing users of tobacco products to quit. 

Parliament then resolves to align the health system with the democratic values of the Constitution and the World Health Organisation’s Framework Convention on Tobacco Control, 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.

The tobacco law regulates what may be contained in cigarettes. How and whether tobacco products may be advertised and sold are also regulated. So, each box of cigarettes must have labels warning of the dangers of smoking. No secondary advertising is permitted. No person shall offer any gift, cash rebate or right to participate in any contest, lottery or game, or any sporting, cultural, social or recreational event, to any person in exchange for the purchase of a tobacco product. No person shall sell or supply any tobacco product to any person under the age of 18 years. Also, smoking is banned in many public spaces, such as sporting events. The law states that: No person may smoke any tobacco product in — a public place; any area within a prescribed distance from a window of, ventilation inlet of, doorway to or entrance into a public place; any motor vehicle when a child under the age of 12 years is present in that vehicle. Employers must ensure that: employees may object to smoking in the workplace without retaliation of any kind; employees who do not want to be exposed to tobacco smoke in the workplace are not so exposed; it is not a condition of employment, expressly or implied, that any employee is required to work in any portion of the workplace where smoking is permitted; and employees are not required to sign any indemnity for working in any portion of the workplace where smoking is permitted.

Violations of the law can be convicted of a criminal offence and fined up to R 100 000.

What is interesting is that during the Covid-19 lockdown, the government banned the sale of all cigarettes. In a challenge to the absolute ban by the tobacco industry, the High Court in Cape Town found that the cigarette ban was not proportional. The medical evidence put by the government ban did not prove that the absolute ban balanced against the violation of rights has been properly calibrated. On the other hand, the High Court in Pretoria ruled in favour of the government and held that the ban assisted in protecting against the some of the harsher insidious effects of Covid-19.

Ultimately I suppose, like all aspects of the law, the government must balance competing interests in how it regulates the tobacco industry. Humans do not want to be controlled by a nanny state on the one hand; but they also don’t want selfish smokers to be able to blow unhealthy and ugly smoke in their faces. And is it fair for the tobacco industry geared towards profits, to be able to encourage children to take up smoking, and to glamourise smoking as being sexy, sporty and a measure of success? My view is no.

Anton Katz is a practising Senior Counsel, former United Nations special rapporteur on mercenaries and human rights, former Acting High Court Judge, and an admitted attorney in New York. He was born and raised in Sea Point.

Published in the PDF edition of the May 2022 issue – Click here to read it.

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