Don’t try to reason with an addict. I have read the Pretoria High Court judgment against the Fair Trade Independent Tobacco Association (Fita) and it appears reasoned. At this stage, I cannot say that it appears well reasoned because I haven’t quite thought through all the legalities, which focused on the legal rationality of the Minister of Cooperative Governance and Traditional Affairs’ ban on “tobacco products”, “e-cigarettes” and related products.
The judgment is reasoned enough and provides sufficient legal ammunition to unleash the Supreme Court of Appeal and the Constitutional Court on it. I have no doubt that some new law which, we will be told, develops the common law, will eventuate, and we will all need to live with that.
This brings me to the disclosure of my personal interest in the matter – that of a nicotine addict. I have been addicted to nicotine since I was about 18, and have smoked cigarettes for most of my life. I remember a three-year hiatus during my midlife crisis between 40 and 43, during which I stopped smoking and held the nicotine monster at bay. Divorce number two saw me taking up smoking again. I have attended several Smokenders courses, in the last of which I assumed the role of the class failure. The class clown.
In January 2020, having failed to achieve cut-off on yet another Smokenders cut-off date, I finally discovered nicotine salts. I have been vaping them in a vape device since then, and have successfully used vaping as a substitute for smoking tobacco as a means of getting my nicotine fix. I have justified this most irrational rationalisation of my addiction to nicotine as being considerably less harmful to my physical health, having read the comprehensive report of 2016 by the Royal College of Physicians in the UK, which indicated that the risks which inhere in vaping are some 20 times less than those in smoking tobacco.
The fact is, rationality is a concept we impose on what we consider we are able to deal with, as acceptable risk. While legally, rationality is narrower than this, to a nicotine addict, providing a rational justification for withholding their fix (or tripling its price), is like shouting at a newborn baby to stop crying.
Back to the matter at hand. The court seems to have confined most of its interrogation of the validity of the minister’s ban to one of the rationality of the minister’s decision to ban tobacco products, e-cigarettes and related products. This is probably because Fita based its challenge squarely on rationality. The problem I have with this approach is that, by testing the legal rationality of the minister’s decision, the judgment’s effect is to apply the legal test of rationality to a decision about an irrational phenomenon – addiction. It also completely ignores us ex-smoker vapers, who have gone with a well-considered, rational expert report which says vaping is 20 times better for you than smoking, and all but recommends vaping being authorised as a valid nicotine replacement therapy.
Let us consider the concept of rationality for a moment. Can it be said that anyone who climbs into a metal tube and flies from one place to another in order to conduct business or go on holiday or see family is behaving rationally? When you climb into your car to drive to work in the morning, entrusting your life to whichever production line your vehicle came from, are you behaving rationally? Come to think of it, is there anything at all rational about the way we exist in South Africa in 2020? Why is taking the risk of lighting the end of a tobacco stick more irrational than getting into your car, or logging a complaint with City Power?
The fact is, rationality is a concept we impose on what we consider we are able to deal with, as acceptable risk. While legally, rationality is narrower than this, to a nicotine addict, providing a rational justification for withholding their fix (or tripling its price), is like shouting at a newborn baby to stop crying. Rationality does not apply to addiction. By its nature, addiction is irrational. All addicts know, deep down, that their fix is bad for them. Yet, they do it. Even non-addicts understand the temptation of substituting a doughnut for a healthy salad during times of stress or weakness: it is not what one’s body and mind needs, but it fulfils a deeper psychological or emotional imperative for a short-lived pick-me-up.
The court made it stridently clear that it wished to restrict its critique of the minister’s directive to rationality, and not reasonableness or proportionality, as though these three words are not related by blood. This is unfortunate, because it is only when one has regard to the reasonableness of the minister’s edict, and how disproportionate the means used are to the ends achieved, that her case would and ought to have fallen apart. There are several million nicotine addicts in South Africa. Anecdotal evidence indicates that there are many more recovering addicts, in the form of ex-smokers. All of us could have used a cogent consideration of the reasonableness and proportionality of the restrictions imposed.
A number of gaps in logic and common sense are apparent, making it a very short and easy step to conclude that there are more cynical forces at play. Clearly not a good result for anyone.
Even if we assume that the “legitimate statutory purpose” of the decision held by the court to be applicable (to lessen the burden on health infrastructure during the pandemic) is correct, it is bizarre to suggest that stopping a few habitual smokers for one or two months (the court admitted that few would stop smoking or limit it) has any effect on their risk from Covid-19 or on them seeking medical attention during the pandemic. Such damage as smoking may cause is a long-term issue, and it is simply irrelevant whether people smoke during the lockdown. Long-term smokers mentioned in the literature placed before the court are people whose health has been damaged by smoking over many years, not those who happen to smoke during the lockdown.
In any event, even if we assume that certain people who cannot access illegal cigarettes, if they continue to smoke, may need to visit the hospital over the pandemic period on a couple of occasions, which they would not have to do otherwise, then it still ought to have been taken into account, firstly how small that number of people is, and secondly, the kind of health and psychological problems or reactions and risky behaviour which will ensue if people are prevented from accessing nicotine. There is no evidence that this was properly taken into account.
Vaping is widely recognised as an effective method to quit the more dangerous nicotine-delivery mechanism of smoking, as are nicotine gum and nicotine patches. Purchasing the latter two remains legal during the lockdown period, as does (ironically) the purchase of CBD-containing vape juices and the devices us vapers need for our fix. This means that neither nicotine, nor vaping, by themselves, is considered by the minister to be inherently dangerous. The effect of this judgment on me personally is that, as my pre-lockdown stash of vape juice dwindles at an alarming rate, I am probably going to end up being forced to switch back from vaping to illegal cigarettes. The end achieved by the means will be to turn an otherwise law-abiding citizen into a criminal and to make me engage in behaviour which, says the Royal College of Physicians, is some 20 times worse for my health than vaping.
The minister’s logic does not hold up, particularly when applied to vaping. A number of gaps in logic and common sense are apparent, making it a very short and easy step to conclude that there are more cynical forces at play. Clearly not a good result for anyone.
The fact remains that smokers continue to get their fix and money keeps changing hands. All that has probably changed is the quality of the tobacco, the price, and the receivers of the revenue. This seems to be an acceptable outcome to the minister and the court. Seems irrational to me. DM