Tobacco Products Control Amendment Bill [B24-2006]: deliberation

HEALTH PORTFOLIO COMMITTEE
06 March 2007
TOBACCO PRODUCTS CONTROL AMENDMENT BILL (B24 - 2006): DELIBERATION

Chairperson: Mr L V Ngculu (ANC)

Documents handed out:
Letter of thanks from Tobacco Institute of South Africa (TISA)
Letter of thanks from Swedish Match

Audio recording of the meeting

SUMMARY
The Chairperson reported that the Foodstuffs, Cosmetics and Disinfectants Amendment Bill had been taken to a mediation committee, whereafter the Portfolio Committee had made the necessary amendments. The Bill would be tabled shortly.

The Committee debated the Tobacco Products Control Amendment Bill, clause by clause. In Clause 1, the definition of ‘brand element’ was removed from this Bill and moved to the Section 76 Bill. The definition of ‘organised activity’ was also removed from this Bill and taken to the Section 76 Bill. The new definition of ‘public place’ would not contain the word ‘club’ as this was a tautology. It was agreed that snus would be included as part of the definition of ‘tobacco product’
In regard to Clause 2(1)(a)(ii) members discussed whether it was practical for the Minister to regulate a prescribed distance away from windows and doors. The Department of Health did not have a specific view on the matter. It was agreed that no decision would be taken on this clause at present. The majority of members agreed to Clause 2(1)(b). It was stressed that this Bill was not attempting to ban smoking, but to further regulate smoking in public places. Clause 2(1)(c) relating to smoking in private dwellings attracted much debate. A member proposed formally that the word “if” be substituted with the word “when” and this was accepted. There was debate whether the clause adequately protected domestic workers, and it was finally concluded that they would be protected by other legislation. Clauses 2(2), 2(3) and 2(4) were agreed to by members. Clause 2(5) again attracted debate in regard to domestic workers and the definition of a workplace, but it was generally agreed that legislating specifically for their situation in this Bill was not appropriate, and the clause was accepted. Members agreed to clauses 2(6) and 2(7). They also agreed with Clause 3. Clauses 4(a)(b)(c) and (d) were accepted. A drafting error was corrected in Clause 4(e), where the word “access” should read “assess”. Clause 4(f) was discussed in detail. Some members did not believe that the public and the Minister should receive information, as this amounted to private research and to trade secrets. Others believed the public had the right to access to information on smoking. A proposal was made that 4(f) be redrafted so that information regarding the products’ chemical content could go to the public, and to the Minister, but that issues that related to internal research and trade competitiveness should not be made available to the public. No decision was taken on this clause and the Committee would proceed with deliberations from Clause 4(f) at the next meeting.

MINUTES
Foodstuffs, Cosmetics and Disinfectants Amendment Bill (B35D-2005)
The Chairperson commented briefly on what had transpired following disagreement amongst members during the previous deliberation on the definition of ‘mollusc’. Having sought the advice of the Parliamentary Legal Advisors and the Department of Health advisors, the matter was taken to a mediation committee, after which the Portfolio Committee made the necessary amendments. The Amendment Bill would be tabled in the National Assembly.

Tobacco Products Control Amendment Bill (B24 – 2006): Deliberations
Title
All members were in agreement on the cover and title of the Bill.

Clause 1(a): Definitions of ‘brand element’ & ‘composition’
Ms Malumise (ANC) proposed that the definition of ‘brand element’ in Clause 1(a) be removed from this Bill and moved to the Section 76 Bill.

Mr G Morgan (DA) supported this suggestion.

All other members were in agreement, and added that this definition should be discussed in the Section 76 Bill.

It was agreed by all members that the definition of ‘composition’ was acceptable.

Clauses 1(b), 1(c), 1(d) and 1(e) Insertion of definitions ‘

These clauses were accepted.


Clause 1(f): Substitution of definition of ‘organised activity’
Ms M Matsemela (ANC) suggested that this definition be deleted and taken to the Section 76 Bill, as it had no reference to the remainder of the current Bill.

Mr Morgan (DA) concurred with the proposal.

In order to eliminate any confusion from the other members, Ms Matsemela (ANC) therefore clarified that her proposal was to delete Clause 1(f) in its totality.

It was agreed that this subclause be deleted.

Clause 1(g): Insertion of ‘public conveyance’
all Members agreed to this clause.

Clause 1(h): Substitution for the definition of ‘public place’
Ms M Malumise (ANC) suggested that the substitution be deleted, as a public place by definition referred to one that was indoor, enclosed or partially enclosed.

Referring to the insertion of the word ‘club’, the Chairperson sought to clarify what the ANC was proposing.

Mr A Madella (ANC) added that the insertion of ‘club’ could be a tautology, since the mention of a public place as being indoor, enclosed or partially enclosed would include a club. He clarified that the ANC’s proposal was to delete ‘club’ since it would already have been included.

All of the members were in agreement with the deletion of the word ‘club’.

Clause 1(i): Substitution for the definition of ‘tobacco product’
Mr Morgan (DA) mentioned that it was worth discussing how the product snus would be treated, given that it was a non-smoking form of tobacco. Mr Morgan asked whether the Members were suggesting that the tobacco product definition was sufficiently broad to include snus.

Mr B Mashile (ANC) confirmed that it was his understanding that snus would be included as part of the definition of ‘tobacco product’

Mr Morgan (DA) highlighted his concern regarding whether snus as a harm reduction product would have the ability to market itself as a cigarette substitute, but confirmed that he was in agreement with the ANC Members.

Clause 1(j): Substitution in the definition of ‘workplace’
All Members were in agreement with the substitution in the definition of ‘workplace’, which refers to any indoor, enclosed or partially enclosed area in which employees perform the duties of their employment.

Clause 2

Clause 2(1)(a)(ii)
Ms Matsemela referred to clause 2(1)(a)(ii), and questioned how practical it would be for the Minister to regulate a prescribed distance from a window. She reiterated that the statement of the distance from ventilation inlet, window, doorway or entrance would be an impossible task for the Minister to prescribe from a practical point of view. She therefore proposed that (ii) be deleted.

Ms M Manana (ANC) questioned whether the Minister would need to be there in person, and referred to Clause 7(5) of the Bill relating to offences and penalties. She believed that Cause 2(1)(a)(ii) was relevant, and was qualified by Clause 7(5) of the Bill.

Mr Morgan (DA) had two interpretations of 2(1)(a)(ii). He mentioned that he thought it was a very good provision to prevent smoking within a certain distance from a door or window, partly because people congregated outside buildings. He mentioned that his issue, however, was to do with defining the prescribed distance. He had no doubt that the Minister would be reasonable in prescribing the distance. He would prefer that the proposal be made with a degree of certainty regarding the prescribed distance, but reiterated that the intention was good. He added that he was in full agreement that the smoking regulation was not completely enforceable, but argued that the committee should aim for greater compliance, maintaining that some compliance would still be good.

The Chairperson mentioned that one of the objectives of the legislation was to ensure that secondary smoking was minimised. He referred to the public hearings, and reminded the Committee that the experts had informed of the dangers of secondary smoking. Mr Morgan had made a valuable point. The policing of the Bill had not been done by the Department of Health. He agreed that the removal of 2(1)(a)(ii) would defeat the spirit and the intention of this legislation.

Ms Matsemela (ANC) reiterated her concerns around this subclause. All of the Members understood the intention of the legislation, and did not want to defeat it. However, her primary concern was regarding enforcement of the prescribed distance.

The Chairperson asked for the advice of the State Law Advisors, asking if they could think about a reasonable way for formulating the legislation that took into consideration the concerns of the members.

Mr M Sibuyana (IFP) suggested that the reasonable distance could only be determined by the person who complained about it. Using the example of his own home, he clarified that he would determine what this reasonable distance was, and hence it would be his responsibility to state that distance to the smoker who contravened Mr Sibuyana's rights as protected by this law. Mr Sibuyana did not think it would be proper to delete this provision as it acted as a safeguard.

The Chairperson suggested that 2(1)(a)(ii) be retained in the Amendment Bill.

Mr Morgan (DA) realised that the problem was with the words ‘prescribed distance’, and agreed that the Committee would have to exercise caution. Using the example of St Georges Mall in Cape Town, Mr Morgan estimated that the buildings were approximately 25 metres away from each other, so the space in between the mall would be regarded as off-limits for smokers. Mr Morgan argued that this measure would be too drastic. He reminded the Committee that they were usually very definitive about other aspects of legislation, and proposed that the Committee should agree on the principle, and obtain further feedback from the Department of Health regarding the ‘prescribed distance’. He also mentioned that if there were practical problems associated with this provision, it could be amended in time.

The Chairperson was concerned that there would be further delays in approval of the Bill and hoped that the matter could be concluded at this meeting. He asked the Committee to think about the matter quickly.

Mr Mashile recommended that, given the time constraints associated with amendment of the legislation, the Committee must retain the existing provision, and put their trust in the Department of Health to be reasonable about this provision.

A State Law Advisor reminded the Committee that before the Minster could regulate, he or she would be obliged to consider the input of the public.

Ms Malumise (ANC) suggested that the Committee obtain the view of the Department of Health (DOH).

Ms C Dudley (ACDP) asked whether the Department of Health had held any discussion regarding this distance.

Dr Kamy Chetty (Deputy Director General, DOH) clarified that the intention of the Department of Health was to avoid the situation where people were smoking close to doors or windows. She clarified that the Department did not take any position on the prescribed distance, but mentioned that discussions did take place as to whether this distance should be 5 metres or 1 metre.

The Chairperson urged the committee to think carefully about whether there may be a better way of wording this provision, and suggested that Members return to this matter.

Clause 2(1)(b)
Ms N Nkabinde (UDM)referred to the phrase ‘subject to any prescribed condition’ and proposed that this Clause could be deleted, as the definition of public place would also include the work place. She stated that people whose workplace included a designated smoking area would not be protected, and hence the clause should be deleted.

Mr Madella expressed his disagreement, stating that it was not the intention to ban smoking everywhere at this point in time. Mr Madella reminded the Committee that the intention was to make provision for smoking in any public place in a way that did not interfere with other non-smokers, and he believed that the clause provided for this.

Mr Morgan concurred with Mr Madella, stating that the designated areas were entirely reasonable, as were the prescribed conditions that went with them. He maintained his support for designated smoking areas.

Ms Dudley and Ms Nkabinde also agreed that the provision was reasonable.

Clause 2(1)(c): Smoking in private dwellings
Mr Madella proposed changing the words ‘if that private dwelling is used for any commercial childcare activity, or for schooling or tutoring’ to the words ‘while that private dwelling is used for any commercial childcare activity, or for school or tutoring’. Mr Madella argued that the owners or occupants of the private dwelling should have the right to smoke in their own homes at the time when no commercial activity was taking place.

Mr Morgan agreed with Mr Madella that the word ‘if’ should be substituted with the word ‘while.’

Mr Mashile agreed with Mr Madella, stating that if someone had previously smoked in that private dwelling, before it was used for commercial activity, then they should be allowed to continue to smoke.

Ms R Mashigo (ANC) highlighted that a private dwelling was excluded from the definition of ‘workplace’, and that this subclause referred to a private dwelling that was also used for commercial reasons, not necessarily just as a domestic home. Ms Mashigo suggested that an addition was necessary to ensure the protection of domestic workers in the dwelling.

The Chairperson indicated that the Committee should be clear that the force of the regulation would lie in the implementation.

Ms Malumise was concerned that children who were part of a family living in the dwelling would not be protected.

Mr Morgan was pleased that this debate was happening, saying that smoking legislation was very complex. He did not believe that any of the Members thought it to be desirable for adults to smoke in the presence of children or domestic workers. However, he asked whether the Committee could actually legislate on that, and urged the Committee to think sensibly about areas of the legislation that could be accepted. Mr Morgan proposed that it was necessary to put pressure on the Department of Health and Department of Labour to actively push for consideration for children and domestic workers, but he maintained that it was not possible to enforce such a provision in law. Realistically, there was no way that any inspector could visit thousands of households to ensure that people were complying with the legislation. If a school inspector saw a teacher smoking in a room, then it would be an offence..

The Chairperson summarised that the critical question was to do with enforceability. He agreed that there was a challenge in the dichotomy where a domestic worker was working in a private dwelling. He referred to the comment made by Mr Mashile and suggested that the smell of second hand smoke in any public or private place was not good for younger children.

Ms Mashigo reiterated her concerns regarding the exclusion of domestic workers from a private dwelling. She mentioned that a private dwelling could actually be a work place, and proposed that an amendment be made along the lines of: ‘notwithstanding that a private dwelling is a workplace’. She questioned why the Bill should provide for the private dwellings that were in commercial use, but not for the protection of a domestic worker, who would be in need of protection.

Ms Dudley questioned whether it would be a solution to add: ‘when that private dwelling is used as a workplace’. Ms Dudley suggested that people could be sitting in a private dwelling doing clerical work, and asked whether the Committee was not just adding another possible situation.

The Chairperson stated that domestic workers were often integrated into the family, and asked how many domestic workers there were in the country. He wondered whether every house needed to be policed for domestic workers. There were certain instances where private dwellings were used as offices, but that this was a different matter, that there were concerns about the reasonableness and predictability of this provision and the fact that the clause only seemed to be contemplating childcare.

Mr Madella proposed that the clause be amended to clarify that the provisions would apply "while a private dwelling is used for any commercial activity’. The issue of domestic workers was something that the Committee needed to take into consideration, and he referred that the Health and Safety Act had to do with protection of their rights. This issue needed to be debated much more, highlighting the fact that domestic workers also had rights, even if they were integrated into the family. Mr Madella concluded that banning tobacco in private dwellings would be an impossible task, and reiterated that this piece of legislation was not intended to ban tobacco.

Mr Morgan again proposed that the amendment be left as it stood, save that ‘if’ be changed to ‘while’. Any further legislation would create a regulatory nightmare, where there could potentially be people applying to the Minister for smoke rooms in their private dwellings. South Africa had already been recognised as having taken a great step forward in smoking legislation. He felt that the legislation had an excellent clause on the protection of children, but urged the Committee not to try to regulate private dwellings.

Ms Mashigo had now consulted with Dr Saloojee (National Council Against Smoking) and reminded the Committee that a private house was the workplace for domestic workers, and their rights as workers had been recognised by the Unemployment Insurance Fund (UIF) protection. She agreed with Ms Dudley (ACDP) that all workplaces must be included, stating that if the word ‘workplace’ was used, then it would be comprehensive enough to include domestic workers. Ms Mashigo felt strongly that if the word "commercial" was used then the Committee would be ignoring the intention of this legislation.

Ms Dudley was not opposed to the committee taking a progressive approach, and stated that she would be satisfied with using "commercial activity" only, as long as provision were made for childcare.

The Chairperson reminded the Committee that the 1993 legislation prohibited smoking in public places. This Bill was intended to take the previous legislation a step further and limit smoking in public places. The committee realised that certain commercial places would also be included in the definition of a public place. He acknowledged that the positions and opinions on domestic workers were laudable but stressed that the Committee must understand the extent to which this legislation could be implemented and policed.

Ms Dudley warned that there may also be unintended consequences should the domestic worker be included in the provision, in that there might be limitations associated with obtaining work.

Dr Chetty stated that if a domestic worker mentioned to his or her employee the unwillingness to be exposed to a tobacco product, then that should be respected.

The Chairperson reminded Dr Chetty that domestic workers were vulnerable, and that such a situation would generally not apply.

Mr Morgan proposed formally that the existing definition be retained, save that ‘if’ be changed to ‘while’. The majority of members agreed.

Clauses 2(2), 2(3) and 2(4)
Members were in agreement with these clauses.

Clause 2(5)(b)
Ms Mashigo referred to Clause 2(5)(b), relating to the responsibility of the employer to employees who did not wish to be exposed to tobacco smoke in the workplace. She mentioned that Clause 2(1)(c) discussed the workplace. She said that domestic workers did in fact work "in the workplace" and were vulnerable. Once again she was concerned at their exclusion. She proposed that some synergy could be created between the two clauses she had referred to.

The Chairperson reminded Ms Mashigo (ANC) that line 32 on Page 3 included a provision for the ‘workplace and public conveyance’. The Chairperson further mentioned that provision had also been made for a private dwelling that was used for commercial purposes.

Clause 2(5)(a)(c) and (d)
Ms Dudley said that she believed the Committee had made the right choice in this clause. It was not totally unreasonable that a person who smoked should do so elsewhere..

Mr Morgan acknowledged this point. He added that a domestic worker would be moving around the house. He believed that trying to legislate for this would be going too far, and maintained his support that a provision for domestic workers should not be included in the Bill.

Ms Mashigo consulted again with Dr Saloojee. She highlighted that the Committee should always refer back to the Constitution of South Africa. Quite apart from the legislation, the Constitution called for a better life for all, as did the World Health Organisation (WHO). She reiterated her formal proposal that a private dwelling be included in the definition of the workplace, and urged the committee to revisit its current exclusion from that definition. She believed that if the Committee did not ensure the safety and quality of life, there would be challenges from the Congress of South African Trade Unions (COSATU) and others.

The Chairperson reminded Ms Mashigo that the Committee had already agreed that the private dwelling provisions referred to a dwelling used for commercial purposes.. Further Clause 2(5) discussed the relationship between the employer and employee. An employee may object to smoking in the workplace without retaliation of any kind, further entrenched the rights of the workers.

Ms Malumise stated that Clause 2(5)(b) dealt with employees who did not want to be exposed to tobacco smoke in the workplace and believed it would cover the concerns of Ms Mashigo.

Ms Dudley was concerned that the Committee was moving too fast, and suggested that it refer back to the definition of a workplace.

Mr Madella pointed out that the workplace was defined as an enclosed or partially enclosed area. He felt that this was clear enough. He said that the employer/employee relationship was also adequately covered by the Bill, so he believed that no further specific reference was necessary. He agreed that Clause 2(5) was a very progressive provision, as it placed a responsibility on the employer to indeed take care of the health of employees as it related to the inhalation of tobacco smoke.

Ms Dudley suggested that Section 2(1)(c) of the main Act should make a provision for after working hours. Presently there was no provision for private dwellings used in this way, and a proposed amendment could be included under subsection (1)(j).

Mr Madella said that the definition in the 1993 Tobacco Products Control Act excluded private dwellings. He reminded the committee that the intention of the Act to include a provision for private dwelling was not intended for an employee-employer relationship in that dwelling. He further stated that this Bill did not intend to interfere and regulate that kind of relationship. He mentioned that commercial activity as it related to children had also been specified, and the concerns of the domestic worker would be guided by the employer-employee relationship in the Act. Mr Madella was not comfortable with the idea that the 20 million private dwellings in the country be included, and mentioned that the intention of this piece of legislation was to place the responsibility on the employer, where a private dwelling was used for commercial purposes.

Ms Dudley asked whether private dwellings should excluded from Clause 2(5)(b), giving the employee the right not to be exposed.

Mr Mashile felt that such a provision would create a contradiction.

Mr Morgan suggested that the Committee had gone far enough for the moment by creating a provision for childcare activity.

Ms Dudley reaffirmed her opinion that the definition of the workplace should be changed, which would give the owners of the dwelling liberty to smoke as they liked during working hours.

Ms Matsemela felt that the intention of the Bill was not to regulate private dwellings as such, but rather to regulate certain areas of them, and had made it clear that some private dwellings included childcare. She added that there was a need for a tobacco policy in every single workplace, but the Bill broadly dealt with the restaurants and the industry.

Ms Dudley expressed her agreement with the initial suggestion of changing ‘if’ to ‘while’ and added that it was most useful to include schooling in this provision.

A State Law Advisor was concerned that commercial activity did not cater for the domestic worker.

Ms Matsemela asked the question of what the committee was trying to achieve by interfering with the rights of other people, and also reminded the committee that in terms of the Constitution, people had the right to privacy. She reiterated that the intention was not to try to regulate areas that were owned and used purely for private reasons.

The Chairperson felt that this was the point that Ms Dudley was trying to make, and agreed with the proposal of Ms Dudley that the word ‘if’ be changed to ‘while’.

Ms Dudley said that she was attempting to get the domestic worker included. Therefore she proposed that provision be made for any activity of work, or where people are being employed. Ms Dudley suggested that the legal advisors would be able to inform the correct wording.

The Chairperson suggested that perhaps the word ‘commercial’ be deleted from clause 2(c), so that it should read as ‘any childcare activity, or for schooling or tutoring’.

The State Law Advisor was concerned that if the word ‘commercial’ were removed, then any house where there were children would be included in a private dwelling.

Ms Dudley said that private dwellings functioning as a workplace excluded employees who did not want to be exposed to tobacco in their workplace.

Mr Mashile reiterated that the Committee would like to give people the right to smoke in their own house, but on the other hand needed to ensure that the domestic worker was not exposed. This kind of contradiction created confusion in the legislation.

Mr Morgan mentioned that the Committee could not be aware of the implications and impact of legislating on private dwellings, nor did the Committee know what effects this could have on employment. He concluded that the Committee therefore was not further.

The Chairperson reiterated the proposal of Mr Morgan. It was agreed again by the majority of members that the wording of 2(c) remain, save that ‘if’ in the first line be changed to ‘while’

Clause 2(6) and 2(7)
All members were in agreement with these clauses

Clause 3: Substitution of Section 3A of the principal Act
Ms Dudley asked whether it was ever considered that this clause be moved to the Section 76 Bill.

Mr Mashile replied that he was not aware of such a decision.

All members expressed their agreement with this clause

Clause 4: Amendment of Section 6 of the principal Act
All members were in agreement with Clauses 4(a), (b), (c) and (d).

Clause 4(e)
In respect of clause 4(e), Mr Madella felt that the words ‘methods to access conformity’ should read “methods to assess conformity”. Members agreed this was a drafting error and should be changed.

Clause 4(f)(i)and 4(f)(iii)
Mr Morgan was not happy with the provisions of Clause 4(f)(i), relating to the obligation of the tobacco manufacturer to share research information with the Minister and the public, and Clause 4(f)(iii) relating to information on marketing expenditure. Mr Morgan felt that that kind of research was private, and hence should only be in the hands of the manufacturer. He proposed that the subclause be deleted. The nature of competitiveness in the industry meant that such information was of no value to the consumer.

Ms Dudley suggested replacing the word ‘and’ with ‘or’ in relation to information being submitted.

Mr Morgan disagreed with Ms Dudley, stating that any information that was revealed by the industry should actually go to the Minister only, as it informed decision-making on regulation. He felt that the word “public” be removed from both subclauses.

The Chairperson reminded Mr Morgan about the Access to Information Act, and said that the public had a right to information on the adverse consequences of smoking.

Mr Morgan agreed that cigarette companies should not be able to hide the contents of their product, but was not sure whether the public needed to know anything more.

Ms Matsemela referred to the presentation made by Phillip Morris during the public hearings, which stated that Phillip Morris would be comfortable with giving information to the Minister, as long as none of the competitors had access to that information. She felt that the Minister should at least be able to assess the information, so that the necessary measures could be taken in terms of the Constitution. The State Law Advisors had confirmed that the information would not be disclosed to any competitors. She proposed that the wording remain.

The Chairperson asked whether the Public were able to demand information from the industry.

The State Law Advisor said that he was not able to advise on this at that moment, but would research this.

The Chairperson asked about the right to information in Section 36(2) of the Access to Information Act.

The State Law Advisor confirmed that trade secrets could not be released.

Mr Morgan asked why the Bill included “and to the public” and expressed his view that this led to confusion and opened up a loophole for the release of trade secrets.

The Chairperson suggested that the words “and to the public” be deleted.

Ms Dudley questioned why it was such a problem for the public to know what research was being done.

Ms Mashile was of the opinion that the right of access to information empowered the public with information, and removal of those words would not change the situation.

Mr M Sibuyana (IFP) voiced his comments, also on behalf of Dr R Rabinowitz (IFP). The IFP supported the purpose of the Bill, mostly to reduce the enticement of young persons to tobacco products. It felt that the smoked and the non-smoked product did not have the same effects, and hence proposed an allowance for both, mentioning that Swedish styled snus may require a prescription in time to come. The IFP had proposed the insertion of the following after Clause 4(g): “Notwithstanding all of the above, the Minister may through a notice in the Gazette introduce separate regulations for smokeless tobacco products and the smoked tobacco products.”

The Chairperson mentioned that this had been discussed earlier, under the definition of tobacco products. He wished Dr Rabinowitz a speedy recovery from her illness.

Ms Dudley highlighted the fact that all of the above points had good reasoning, and was adamant that the public should have the information.

Mr Morgan agreed with Ms Dudley and then suggested that 4(f) be redrafted in such a way that information regarding the products’ chemical content should go to the public, and to the Minister. However, issues that related to internal research and trade competitiveness should not be made available to the public..

The Chairperson proposed that the discussions resume the following week from Clause 4(f).

The meeting adjourned.