Cosatu, SA’s biggest trade union federation, warns that failing to comply with the Nedlac Act’s requirements could expose the government to legal challenges on the Tobacco Products and Electronic Delivery Systems Control Bill.
The draft tough new antismoking law before parliament contains measures to regulate e-cigarettes for the first time.
At issue is the bill not having been subjected to thorough assessment at Nedlac, a point highlighted by DA MP Michele Clark when parliament’s health portfolio committee met to begin its work on the bill on Wednesday.
The health department made a presentation on the bill to Nedlac in July 2022, but there has since been no further discussion on it, she said.
Nedlac is a consensus seeking body that includes representatives of business, government and labour. The Nedlac Act governs its work, requiring it to consider policies and legislation with socioeconomic implications. It is expected to report to parliament on draft bills before MPs begin their deliberations.
SA’s courts have struck down several laws because parliament failed to comply with its public consultation requirements. A similar fate could befall the tobacco bill if the health department does not comply with the Nedlac Act, said Cosatu’s parliamentary co-ordinator, Matthew Parks.
Earlier this week the Constitutional Court ruled parliament had failed to comply with its obligations to facilitate public participation when it considered the Traditional and Khoisan Leadership Act, and declared the act invalid.
Cosatu had repeatedly asked the health department to discuss the bill at Nedlac, he said. “We warned the department industry will not sit back,” he said.
The Nedlac process was intended to find common ground between business, labour and the government before a bill was considered by parliament, but the parties could agree to disagree, he said. Nedlac could expedite its consideration of the bill, he said, as there was less than a year to go before parliament rises ahead of the 2024 general election.
Deputy health minister Sibongiseni Dhlomo told MPs that the department would take the tobacco bill to Nedlac “a second time”, but did not provide any further detail.
The bill contains restrictions on smoking in public places, introduces plain packaging and picture warnings, bans vending machine sales, prohibits point-of-sale advertising and for the first time regulates e-cigarettes and other new generation products in much the same way as tobacco. It contains provisions to enable the health minister to limit or prohibit flavours, which public health advocates say are a tool used by the industry to attract younger customers.
The DA said it was concerned the introduction of plain packaging would boost sales of illicit cigarettes, exposing customers to poor quality products and depriving the fiscus of tax revenue.
“I am a smoker, so I am speaking from experience,” said the DA’s Lindy Wilson. “When I go and buy cigarettes, I buy quality from a credible producer. Now you are going to put everything in a brown packet. (It’s) the easiest thing to fraudulently duplicate,” she said.
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