Amendments to the Tobacco Products Control Act of 1993

1
Amendments to the Tobacco Products Control Act of
1993

• Adv Patricia Lambert
• Director International Legal Consortium Campaign
  for Tobacco-Free Kids
• Washington, D.C

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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)

3
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

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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.

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Risky or Dangerous
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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.

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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.

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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,

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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 concluded
• Jun 2003 Treaty opens for signature and
  ratification

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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

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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

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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

13
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

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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 governments tax base

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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

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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

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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

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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 peoples pockets can be spent elsewhere.
  It doesnt disappear.

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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

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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

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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.

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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

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Stakeholder Consultation

• Consultation does not mean agreement.

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Loopholes - Advertisement
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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

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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

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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.

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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

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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.

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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

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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

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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.

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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.

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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

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FCTC - Second-hand Smoke

• Article 8
• The Conference of the Parties has mandated a
  working group to propose guidelines

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FCTC - Manufacturing Standards

• Article 4.3
• Article 5.5
• Article 5.6
• Comparison with the pharmaceutical industry

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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

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FCTC - NGOs

• Article 4.7
• The participation of civil society is essential
  in achieving the objective of the Convention and
  its protocols.

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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.

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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

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Organised Activity
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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

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Thank you