The Portfolio Committee on Health’s adoption of a motion of desirability on the Tobacco Products and Electronic Delivery Systems Control Bill on 24 June was a welcome change of pace after many years of deadlock. Chairperson Faith Muthambi was clear that the vote was not an endorsement of the text as it stood, but a mandate to improve it through the clause-by-clause scrutiny, which formally began on 12 August, with differentiation and harm reduction as the lens.
This is a breath of fresh air.
For years, the Department of Health treated combustible cigarettes and non-combustible products – vapes and other electronic delivery systems – as interchangeable threats requiring identical restrictions. The committee has now accepted what the evidence and ordinary consumers have long insisted: not all tobacco and nicotine products carry the same risk.
Combustibles present the highest public health burden. Non-combustibles clearly do not belong in the same regulatory category, and for the law to pretend otherwise is a departure from evidence-based policymaking and enters the realm of mere ideological zeal.
So, a critical leap forwards has occurred.
Vaping, whether one finds the activity appealing or not, remains one of the practical routes by which smokers move away from the most harmful form of nicotine use. Consumers have already started voting with their wallets and habits.
Treating lower-risk alternatives as if they were cigarettes will not protect public health but simply drive consumers back towards the higher-risk product or into black market channels.
The principle of differentiation therefore must be retained and applied consistently as the committee works through the Bill’s text. The first line-by-line consideration occurred on 12 August.
Early indications also suggest that members are engaging the illicit trade question more openly than before. Recognition that illicit products undermine every formal control is overdue.
This Bill has already been one of the most extensively consulted pieces of health legislation in recent parliamentary history, with more than a thousand oral submissions and tens of thousands of written ones over eight years. South Africans are clearly watching.
Public interest is high because the stakes are high. Adults must retain the freedom to make their own decisions about what they consume and how they consume it. An economy that already struggles to generate growth and employment cannot afford to damage industries that, whether one approves of the product or not, form part of the formal tax and employment base. Up to now the Tobacco Bill was one of those proposed damaging policies.
The Free Market Foundation has repeatedly documented how the original Bill’s paternalism, over-criminalisation, and failure to distinguish risk profiles threaten both consumer autonomy and the rule of law. The committee’s willingness to revisit those defects is therefore welcome, though consumers and the lawful industry must keep up the pressure to ensure the committee does not stray back into the old ideological premises laid by the Department of Health.
One of the ways this was manifested, was the penalties that the Bill proposes. People found smoking inside their own houses – if they used the home for employment purposes – could be arrested and sent to prison for several years, if that provision were to be adopted. But there are indications that this authoritarian streak might be abandoned.
Indeed, the desirability vote signalled a more sensible and mature approach than the Department’s original one-size-fits-all draft. And the first clause-by-clause session suggests that a sentiment of good sense continues for now.
That progress must be measured by whether the final text respects risk differentials, confronts the price incentives that feed the illicit market, and leaves adult South Africans free to choose among legal options rather than herding them into the shadows. Anything less will be another exercise in busywork that expands the black market while claiming to protect public health.
Dr Martin van Staden is Head of Policy at the Free Market Foundation. He holds a doctorate in law.