While e-cigarette products have managed to evade regulatory oversight under South Africa’s Tobacco Products Control Act, the Control of Tobacco Products and Electronic Delivery Systems Bill, which Cabinet has approved for submission to Parliament, seeks to bring vaping products into the regulatory fold, in addition to tightening up on restrictions on tobacco cigarettes.  

The long-awaited bill, approved for submission to Parliament on 21 September, will repeal the Tobacco Products Control Act of 1993 and seeks to align the country’s public health measures with the World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC), Cabinet said.

A draft version of the bill was first published for public comment in 2018 and has gone through “extensive consultation with various stakeholders, including the tobacco industry, civil-society organisations and relevant government departments”, it said.

The bill proposes greater restrictions on smoking in public places, bans the sale of cigarettes from vending machines, introduces plain packaging of cigarette products with graphic health warnings and, for the first time, regulates e-cigarette products by bringing them under tobacco control laws while also providing for future industry innovation. 

If passed into law, it will ban smoking even in private dwellings such as complexes and multi-unit residences where smoking may interfere unreasonably with non-smokers, including children. It also prohibits smoking in cars where non-smokers, including children, are present. 

It has been lauded by health scientists and public health organisations, including the South African Medical Research Council (SAMRC), the Cancer Association of South Africa and the National Council Against Smoking (NCAS), which have been campaigning for Parliament to fast-track the legislative process. 

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“This bill in South Africa would put us on par with countries that are regulating tobacco and e-cigarettes, and allow the minister of health – if the tobacco industry continues to develop new products – to be able to issue regulations for any new products,” explained Patricia Lambert, the lead negotiator and head of delegation for South Africa during the WHO FCTC negotiations, and current director of the International Legal Consortium (ILC) at the Campaign for Tobacco-Free Kids in the US.

South Africa signed the WHO FCTC in 2003, ratified it in 2005, and as a party to the treaty, it is supposed to make laws that are aligned with the FCTC. E-cigarettes are currently banned in more than 30 countries, according to the WHO. Where they are not banned, the organisation recommends that e-cigarettes be regulated. 

However, the current Tobacco Products Control Act in South Africa doesn’t provide for e-cigarettes, says SAMRC specialist scientist, Dr Catherine Egbe.

“The regulation of e-cigarettes has never happened in South Africa. E-cigarettes have been marketed and promoted in a regulatory vacuum, and that is why you’ll see e-cigarette advertisements and billboards – things that you would not ordinarily see for tobacco products,” Egbe told DM168. 

Egbe said she is very optimistic that the bill will be passed, which “will bring e-cigarettes into the regulatory framework of tobacco control and make it illegal for the e-cigarette industry to market their products around the country”.

According to the Global Adult Tobacco Survey (GATS) conducted by the SAMRC, 29.4% of South Africa’s population over the age of 15 either smoke tobacco or use smokeless tobacco products.

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While research on the use of e-cigarettes is limited in South Africa, public health experts and school educators are concerned about their use among adolescents and young adults. The new tobacco bill would make it illegal to sell e-cigarettes to people under 18.

The GATS SA research found that e-cigarette use was highest among people aged between 15 and 24 years, at 3.1%, compared with the overall prevalence of 2.2%. 

That the research indicated that e-cigarette use is highest among young people suggests that they are not using vapes to quit smoking, said Egbe, who expressed concern about “a new generation of nicotine addicts”.

“When a young person is exposed to nicotine, it makes it difficult for them to quit, but it also affects the development of the child’s brain,” she said. 

Echoing Egbe’s remarks, Dr Sharon Nyatsanza of the National Council Against Smoking, which was part of the consultations on the bill, said: “The bill does not ban e-cigarettes and does not stop adults from accessing e-cigarettes, [but] it tries to strike a balance and ensures that non-users and children don’t start using e-cigarettes.

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“When children start using them, they are more likely to become nicotine addicts and transition to tobacco use, so without regulations we are just perpetuating the addiction cycle and creating a new generation of nicotine addicts.”

Nyatsanza said the bill also empowers the minister to formulate a monitoring committee for tobacco and e-cigarettes, an “important measure because the market keeps changing and a monitoring committee will be able to ensure that there is implementation and enforcement of the current laws but also to keep track with the new innovations”.

Far from harmless

While there is a public perception that vaping is less harmful than tobacco cigarettes, it still contains potentially harmful chemicals. Some of these, in addition to nicotine, such as the carcinogen formaldehyde, are created when the nicotine-rich liquid in some vaping devices is heated to high temperatures.

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Speaking to DM168, University of Cape Town (UCT) pulmonologist Richard van Zyl-Smit explained that the two main components of e-cigarette liquid are: propylene glycol (used as theatre smoke, and why one’s able to make vape clouds) which is classified as a respiratory irritant, and vegetable glycerine, which, if heated to high temperatures, results in among others, acrolein (a respiratory irritant) and formaldehyde – both of which are found in tobacco smoke.

E-cigarettes also contain small amounts of cancer-causing drugs or chemicals; nickel and cadmium from the heating coils, he says. 

They come with a slew of enticing flavours which, Van Zyl-Smit says, are acutely deleterious when inhaled. While flavourings such as cinnamon and vanilla are safe when consumed as a food, they become a “completely different ball game” when heated and inhaled. 

“Butter, cinnamon and vanilla are specific [e-cigarette] flavours that have diseases related to them that have been identified,” Van Zyl-Smit told DM168. 

Cinnamon, when inhaled, can cause particular damage to the hairs in the lungs – cilia – which help clear mucus. It reduces the beating of cilia, which slows the pace at which mucus and pathogens get cleared.

“Popcorn Lung” (bronchiolitis obliterans) is an acute lung injury related to inhalation of diacetyl, a chemical found in butter flavouring.  

“Vanillin has been shown to have endothelial (blood vessel lining) damaging properties, and that’s related to cardiovascular disease and raised blood pressure,” he says. 

‘Death of the industry’

The new bill has been strongly opposed by the tobacco and e-cigarette industries, which are likely to intensify their campaigns against it as the bill makes its way through Parliament. With profits to lose, the tobacco industry was quick to oppose the draft public health policy when it was published for public comment in 2018. 

The proposed legislation comes on the back of a proposed excise tax on vaping products which, according to National Treasury, will take effect on 1 January 2023. 

In response to queries from DM168, CEO of the Vapour Products Association of South Africa (VPASA), Asanda Gcoyi, said the association believed that vape and tobacco products can’t be regulated in the same manner, adding that, if adopted, the bill “would be the death of the industry”.

“As an association, we are all for sensible regulation of the industry. However, we do not find anything sensible about the current proposal released by the Department of Health. Treating vaping in the same way as smoking will completely negate its attractiveness as an alternative to smoking,” says Gcoyi.

The new bill, in taking industry innovation into account, also provides for the possibility of a ban on flavours in vaping e-liquid. 

The vaping and e-cigarette industry says there has been inadequate consultation on the new tobacco bill, and the industry “vehemently objects” to the possibility of the ban on flavours provided for in the bill, which VPASA claims is “an entirely new provision”. DM168

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R25.