Smoking, including the sale, advertising and packaging of tobacco products) is regulated by the Tobacco Products Control Act 83 of 1993. In May 2018, the legislature invited public comment on the Control of Tobacco Products and Electronic Delivery Systems Bill, comment on which closed on 8 August 2018 and the Bill has now gone to Parliament for review. It is likely to be passed in much the same format as before.
The Bill addresses the changes that technology introductions, with particular reference to vapes, e-cigarettes and other kinds of electronic nicotine delivery systems and products. The Bill also seeks to safeguard the health and well-being of the general public.
Employers, along with other public entities, will be required to make changes and will face fines and even imprisonment where they fail to implement their obligations.
“Smoke” has been expanded to include “inhale, exhale, hold or (a) otherwise have control over an lit tobacco product or a heated but not ignited product that produces any emission or (b) operate or otherwise have control over an electronic delivery system that produces an emission of any sort (and this does not mean a motor vehicle).
Workplace is defined as “any place in or on which one or more people are employed and perform work, whether for pay or voluntary and includes – “(a) any corridor, lobby, stairwell, elevator, cafeteria, washroom or other common area used during or incidental to the course of employment or work; (b) any vehicle which is available for use for business or commercial purposes; and (c) any vehicle registered to the government”.
Section 2(1) of the Act makes reference to an enclosed workplace. The definition of “enclosed space” includes any area that is open or closed and any area that has a roof or not. This would mean, to many of us, a company bar or even the canteen area extending to a balcony. These may have been used for smoking purposes – but if the Bill is passed, this will be history. It will also cause other places such as the parking area and other nooks and crannies which smokers have become used to frequenting.
The Bill requires employers to adhere to the public announcements and signage prescribed thereby. Section 2(3) of the Act places the onus for implementation on the owner or person in control of a public place or workplace and the designation of permitted smoking area/s.
The Act permits that Employees may object to smoking in the workplace which goes against the requirements of the Act and they may do so without fear or favour; further, that employees who do not want to be exposed to tobacco smoke at the workplace must not be so exposed; also, Employees are not obliged to work in any area where smoking is permitted and this may not be a condition of employment, implied or expressly put in writing; and finally, Employees are not required to enter indemnities for working in any portion where smoking is permitted by law.
The purpose behind these changes is to bring South Africa in line with the World Health Organisation’s Framework Convention on Tobacco Control. The Bill aims to regulate cigarettes and e-cigarettes and vapes in much the same way as the Act currently does. The electronic delivery systems include nicotine and non-nicotine devices. It seeks to discourage smoking in any form, to control smoking, regulate the sale and advertising of tobacco and related products, provide for the export and manufacturing standards in the industry, prohibit the sale of tobacco and e-enabled tobacco related products to minors and prohibit the free distribution of these in various platforms.
It is difficult to predict when the legislature will release a revised version of the Bill. For now, the Act continues to regulate tobacco products, and vapes and e-cigarettes remain unregulated in South Africa.
However, going the way the world is, we would encourage employers and employees to work together to find appropriate solutions in advance of the legislation being promulgated.