New Tobacco Bill Is Deeply Flawed

Government’s interference is a threat to rights of individuals, private property owners and bad for small business

A coalition of 14 associations, representing more than 1.3 million South Africans working in the restaurant, tavern and hospitality industry, and in small business, have written to government to voice their collective dismay over the extreme measures proposed in new tobacco legislation.

“The Department of Health’s proposed measures to tighten smoking regulations under the Draft Control of Tobacco Products and Electronic Delivery Systems Bill are excessive and infringe disproportionately on the fundamental rights of individuals and private property owners. They are unconstitutional and have damaging economic implications,” says Leon Louw of the Free Market Foundation.

The regulations, if approved, will see an effective ban on smoking in any public place and will make the dedicated smoking areas in public establishments – required by existing regulations – obsolete, despite the hundreds of millions of rands spent by small businesses to construct these areas. Smoking will be prohibited in any “enclosed” public or workplace, or in a private home if one employs a domestic worker, engages in commercial childcare, schooling or tutoring, or any other place that is within a “prescribed distance” of an operable window, ventilation inlet, entrance or exit of such private homes or enclosed places. The Minister may designate any other place as a non-smoking area if they “consider it appropriate”.

The Minister, in other words, will have the power to ban smoking outright throughout South Africa, a fantasy the current health minister has had for a long time.

The Minister, in other words, will have the power to ban smoking outright throughout South Africa, a fantasy the current health minister has had for a long time.

These provisions fall foul of the section 1(c) requirement in the Constitution (the Rule of Law provision) that prohibits the delegation of law-making power from Parliament to an executive functionary. There are no objective criteria in the legislation that tethers the Minister’s power to prescribe distances or designate new non-smoking areas. All that is required is that the Minister subjectively consider it appropriate.

Of concern to the FMF is the impact of the regulations on businesses, especially within the hospitality industry, incorporating restaurants, bars, nightclubs and casinos. No provision is made for smoking establishments at all, which means that if the regulations are passed into law, establishments which cater to smokers only will be banned and put out of business. The consequence this law will have on domestic employment is also an open question. Smoking is prohibited outright in private homes which employ domestic workers: It does not matter whether the employee is only there once a week or is never exposed to the smoke. Will South Africans choose to continue employing these individuals, who form a substantial part of our workforce, or will they choose their own personal freedom? These are key questions the health department has not considered, as evidenced by the absence of a published socio-economic impact assessment on the bill.

The FMF raises concerns over what are deemed to be acceptable limits for government to impose on the conduct of its citizens. “We should not lose perspective on the question of how restrictive a society we want to create,” says Louw.  “How far do we want to allow government to trespass on our constitutional rights and reduce individual autonomy, especially to the extent of controlling what can be perceived as self-destructive behaviour? How can we allow laws that will undoubtedly harm our country’s economy by putting people out of business and make our unemployment situation even worse?”

About the FMF

The FMF is an independent, non-profit, public benefit organisation, created in 1975 by pro-free market business and civil society national bodies to work for a non-racial, free and prosperous South Africa. As a policy organisation it promotes sound economic policies and the principles of good law. As a think-tank it seeks and puts forward solutions to some of the country’s most pressing problems: unemployment, poverty, growth, education, healthcare, electricity supply, and more. The FMF was instrumental in the post-apartheid negotiations and directly influenced the Constitutional Commission to include the property rights clause: a critical cornerstone of economic freedom. For more information visit www.freemarketfoundation.com.


The main provisions of the Bill:

  • Ban the display of tobacco products in all formal and informal retail and wholesale outlets 
  • Ban the sale of tobacco products through vending machines
  • Introduce a complete ban on indoor smoking, including the removal of closed-off designated smoking areas (25%) in which many businesses have invested
  • Ban smoking in homes where a domestic is employed
  • Severely restrict outdoor smoking areas
  • Introduce so-called plain or standardised packaging which requires the wholesale removal of all branding from tobacco products 
  • Regulate e-cigarettes and other new generation products in the same way as traditional products