South Africa

South Africa, Politics

Where there’s smoke: What’s behind the proposed new tobacco regulations?

On World No Tobacco Day on Tuesday, Health Minister Aaron Motsoaledi confirmed the government’s intention to introduce even more stringent smoking laws. Shrewd decision or headlong tumble into nanny-state territory? MARELISE VAN DER MERWE did the maths.

Motsoaledi,” wrote Daily Maverick columnist Ivo Vegter in 2015, “has built the mother of all slippery slopes to nanny-state fascism, and it starts with tobacco products. Once the precedent is set, he can do this with anything, on almost any grounds.”

Vegter was writing on the impending possibility that South African smoking laws would be amended in line with the World Health Organisation’s guidelines. On Tuesday 31 May, Health Minister Aaron Motsoaledi did confirm the intention to do so, alongside Kenya and Uganda, and following in the footsteps of Ireland, Australia, France and the UK. New Zealand, too, announced its intention to follow suit on Tuesday.

[Smoking] has no place in modern life,” Motsoaledi said. Tough smoking laws were working, he added; the percentage of smokers had decreased by seven percentage points since the ban on smoking in public places in 2009.

South Africa needed to fall in line with global trends, he explained. “We have been overtaken.”

South Africa’s major changes to smoking legislation occurred in stages: Under the Tobacco Products Control Act, smoking was banned in public places in 2000; laws were tightened even further in 2009, when smoking was banned in partially covered outdoor areas too, as well as cars carrying children under 12. Owners of bars, restaurants, pubs or workplaces can face hefty fines if they breach smoking laws and smokers can be minus a few hundred if they are caught lighting up in a non-designated area. No more than 25% of a building may be a smoking area, and all tobacco advertising and sponsorships are banned.

Under the new regulations, said Motsoaledi, the health department intends to ban the selling of cigarettes at shop counters, ban cigarette dispensers and force tobacco companies to standardise packaging: brown paper without logos or colour. The laws might also affect the use of e-cigarettes.

But, one might ask, if existing laws are working, why be stricter?

Professor Corné van Walbeek, Principal Investigator of the Economics of Tobacco Control Project at the University of Cape Town, says that after 2009 there was a notable decline in tobacco use, which has now slowed to a halt.

While consumption dropped during the period that government was taking action to reduce smoking, consumption levels decreased less as interventions declined. In the last two years the smoking rate has plateaued at 20% of the adult population.”

Additionally, he argues, developing and emerging economies are targeted by tobacco companies as smoking laws are tightened elsewhere.

In developed countries strong tobacco control policies have eroded markets. There, major multinational tobacco companies have been faced with an increasingly difficult business environment and falling demand for their products. As a result they have fiercely expanded sales in emerging and developing markets in Africa, Asia, Latin America and Eastern Europe,” Van Walbeek wrote earlier this week. Alongside rapid economic growth and less stringent regulatory environments in many lower- and middle-income countries, multinational tobacco companies have been attracted to these new markets, prompting the WHO to call on governments to enforce stricter regulations.

This does not mean the new regulations will solve the problem, however. Van Walbeek told Daily Maverick that the most effective tool for fighting smoking appears to be an increase in excise tax. Numerous studies show, it turns out, that no matter how high the addiction, people reduce consumption in response to higher prices. This is bad news for smokers, legislators and tobacco producers alike: first, smokers would be in for a fresh wave of Sturm und Drang as they faced an ever-pricier addiction; second, the health department may not be taking the most effective approach with the new regulations; and third, tobacco companies may cry all the way to the bank.

But what does this mean in real terms? There is little consensus on the impact of smoking bans on business. Critics, of whom there are many (for example here and here) argue that draconian smoking laws have a particularly negative impact on the hospitality industry. In 2015 in South Africa, there was concern over the possible impact on legal shebeen owners if patrons were prohibited from smoking within 10m of a doorway, considering the typical proximity of one property to another. The Gauteng Liquor Forum argued that harsher smoking laws would drive more patrons to illegal shebeens.

Van Walbeek says that for South Africa, the truth is somewhere in between. For either side of the debate there will be supporting evidence, but in reality, when smoking laws are restricted, some businesses gain patronage and others lose it.

Usually, when there is a restriction of legislation, dire predictions are made,” says Van Walbeek. “Of course, it’s very easy to make predictions, but they are just predictions. We [Van Walbeek and colleagues] published a study in the South African Medical Journal where we interviewed over a thousand different businesses in the hospitality industry and the answer was that some benefitted, some were disadvantaged, and the overall effect was pretty much zero.

At the moment we don’t have specific data regarding shebeens. Realistically, you might find yourself in a situation where it is impossible to smoke legally.”

Benefits of smoking restrictions

The Centre for Disease Control (CDC) cites numerous studies globally that support strict regulations on where smokers may light up. There’s no getting around it: tightening legislation has a positive impact on both smoking cessation and the adverse effects of second-hand smoke. A 2009 report by the International Agency for Research on Cancer found the second-highest level of evidence under its rating scale to support that smoke-free legislation causes a decline in heart disease morbidity.

A 2010 report by the Institute of Medicine pinpointed a causal relationship between smoke-free laws and decreases in acute coronary events, and a Cochrane review of 12 studies underlined consistent evidence of fewer hospital admissions for cardiac events after smoke-free laws were implemented.

In 2012, the UK marked five years since it had instituted a ban on smoking in public places. Its results, too, were promising. There was a decrease in heart disease, a decrease in premature deaths, and a significant improvement in a number of health measures (including the health of hospitality industry employees). There was also a 15% reduction in the number of children treated for asthma in hospitals, despite concerns that children might be exposed to more smoke in the home if adults were prevented from smoking in public places. Five years on, the laws were supported by 78% of adults polled.

Impact of plain packaging

The New South Wales Cancer Institute reported in June 2014 that after standardised packaging was introduced, there was a significant increase in attempts at smoking cessation.

In January this year, a study by the Cancer Institute NSW published in the Medical Journal of Australia showed a 78% increase in calls to the Quitline associated with the introduction of plain packaging,” said CEO Professor David Currow. “Further research by the Cancer Institute NSW from April 2014 reported that since the latest tax on cigarettes in December 2013, there has been a 17% rise in the number of NSW smokers who have tried or thought about quitting as a result of the increasing price of cigarettes.”

Australia spent in the region of AUS$15-million on research, experimentation and trials before implementing the regulations.

Pictorial health warnings are not yet a reality in South Africa, but Van Walbeek says there is legislation in place that would allow the government to pass such a regulation. There is comparatively little data on the success of pictorial health warnings versus public smoking bans, but the International Tobacco Control Project has examined the effect on control groups and found that the desire to quit typically increases, as does the number of successful quits.

But is it the best and most sustainable approach? Not necessarily. “The impact is not massive,” says Van Walbeek. “You may get a change of about 10% mean prevalence, not as great a change as would be achieved by increasing the excise tax.”

The WHO echoes this. “The tobacco industry has had a tendency to over-exaggerate the prevalence of illicit sales in order to lobby against high taxation rates… Nonetheless, taxation on tobacco has proven to be the most cost-effective method at a population level,” it says.

Critics of plain packaging, however, may hit a dead end. Standardised packaging has met with significant resistance abroad, with multinational tobacco companies such as Philip Morris, British American Tobacco, Imperial Tobacco and Japan Tobacco launching high-profile legal battles against the regulations, which they have argued infringe a number of their rights. Big tobacco has for the most part come off the worse for it. Philip Morris lost its case against Australia over plain packaging because the international tribunal considered it an “abuse of rights”, The Age economics editor Peter Martin reported earlier in May. Philip Morris and British American Tobacco together took the fall in the EU, in a battle over pictorial warnings on cigarette packaging. And in the UK, Philip Morris, BAT, Imperial Tobacco and Japan Tobacco International lost a High Court Appeal over plain packaging.

In South Africa, it is likely that tobacco companies will also attempt to counter plain packaging regulations, but, says Van Walbeek, although individual country laws may vary, international cases have probably set something of a precedent. The argument is generally that smoking is bad enough that any means to fight it is legitimate; and that the fundamental rights of citizens to life may trump the rights of companies to sell their products. Constitutional law expert Professor Pierre de Vos adds that to claim depriving companies of branding through legislation is unconstitutional is “almost certainly wrong”.

The key question, Van Walbeek believes, is not the morality of standardised packaging but whether there is a different way to achieve the desired result.

Doing the maths

It’s actually not that simple to put the economics of smoking in black and white. “Many studies of the cost of smoking have been done, and they are very popular from a policy perspective, because you get a very large number,” says Van Walbeek. “But they work on a lot of assumption. How much value do you place on a person’s life? Those are tough moral and ethical questions, although there are value-of-life studies you can employ.

Studies of the cost of smoking can be low if you are aligned to tobacco, or can be very large, depending on how you define the cost of smoking. Is it the cost to society as a whole or just what government must pay?”

The cost is also influenced by the quality of healthcare. In affluent countries, people with smoking-related illnesses may be supported by the state for decades. In South Africa, that kind of treatment is not available to the majority of people. Deaths occur earlier and costs to the state are therefore lower. “But,” says Van Walbeek, “conversely there is a massive loss to family members and the individual.” Costs of smoking studies are therefore complex and difficult.

Excise tax is also not delivering as much income as one might think: R11-billion per year is just over 1% of total government revenue. “It’s minuscule,” says Van Walbeek. However, he adds, it is the one realistic way to ensure a sustainable approach to long-term smoking cessation in South Africa – in large part because it can be done repeatedly.

It’s quite helpful to take into account that excise tax serves quite an important purpose in terms of nudging smokers to quit. In addition to studies, there is also observational evidence that many people do actually quit when faced with a price increase.”

He notes that between 1994, when the government announced that it would increase excise tax on cigarette tax to 50% of its retail price, and 2004, the inflation-adjusted excise tax on cigarettes in South Africa increased by 250%. Add to that price increases by the tobacco industry, and retail prices of cigarettes more than doubled. Cigarette consumption fell by a third and smoking prevalence declined by seven percentage points. “It was a win for both public health and the fiscus,” Van Walbeek wrote in a feature for The Conversation.

The biggest work has been done’

So where to from here? Van Walbeek believes “the biggest work has been done” in South Africa: substantially reducing smoking prevalence and increasing attempts at smoking cessation.

Now, he says, it’s likely that removing point-of-sale displays will have a more significant impact than removing logos and colours on cigarette packaging. A key challenge also remains for the tobacco control community to reach consensus on how to manage e-cigarettes.

But will South Africa’s proposed changes make a big difference in future? Van Walbeek isn’t sure. “Will it further denormalise smoking? Possibly. I think government wants to reduce smoking as much as possible. But will it decrease prevalence to, say, 12%? No, probably rather by about two percentage points. That would be my guess, and not instantaneously.

As a country, we bought into the tobacco industry’s warning that higher tax would result in more illicit trade, but there is very modest evidence to support this. Over and above proposed amendments, I’m pleading hard for an increase in excise tax.” DM

Photo by Paul S. via Flickr

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