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Shots fired in tobacco wars globally, not just in South Africa

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

The Pretoria High Court ruling on the Covid-19 tobacco ban was just one of several similar setbacks for big tobacco, and victories for the global anti-smoking campaign.

If you ever thought that the government and the tobacco industry would be smoking a peace pipe during lockdown Level 3, I impress on you to think again. President Cyril Ramaphosa during his Covid-19 Presidential Imbizo on 1 July 2020, in which he answered a few questions from the public, did not commit to when exactly the cigarette ban will be lifted. However, he indicated the possibility of the lifting of the ban at another level of lockdown.

It was overly ambitious for anyone to expect the president to capitulate after the victory in the Pretoria High Court that essentially considered the cigarette ban a justifiable action by the government to protect the citizens and residents of South Africa against the spread of Covid-19. 

“Fita’s argument that cigarettes ought to have been considered ‘essential’ because they are addictive has no merit,” the court ruled. “In line with its constitutionally mandated duties to preserve life and provide adequate healthcare, the state was under a duty to adopt measures to ensure that the already fragile healthcare system was not overwhelmed even further,” noted part of the ruling in the case. Also, the fact that the legal battle over the tobacco ban continues to play out in our courts could have made the president uncomfortable to answer the question on the lifting of the tobacco ban.

Of course, the tobacco industry and users may feel aggrieved and argue that the Pretoria High Court erred in its application of the limitation clause to the facts of the case. The industry may also feel aggrieved that the court failed to make an objective assessment of the facts, particularly when Judge President Dunstan Mlambo declared that he will not be assessing studies on the impact of tobacco in coming to the conclusion that tobacco is an essential good. Not even the econometric evidence provided by the tobacco industry could sway the court to nullify the tobacco ban.

A closer reading of reactions to the Pretoria High Court ruling suggests that many smokers and addicts are “suspicious” of the ruling by Judge President Mlambo, which found in favour of almost every argument advanced by Cooperative Governance Minister Nkosazana Dlamini Zuma in defence of the three-month-old tobacco ban. 

There seems to be some sort of disgruntlement against the courts, with some accusing them of acting in a sinister way. According to the mysterious Professor Balthazar, who seems baffled by different decisions of two High Court divisions (The Pretoria High Court and the Western Cape High Court), with no powers of setting precedence over each other, “the most important question is whether Covid-19 will mark significant changes in the role of the judiciary as the country moves out of this pandemic”.

The tobacco wars are set to continue, with a possibility of the tobacco industry appealing to the Supreme Court of Appeal (SCA) or the Constitutional Court. “The Pretoria High Court 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,” argues Matthew van der Want, who is a director at Fairbridges Wertheim Becker Attorneys.

Let me step off the tobacco ban in South Africa and note some parallel developments on the issues of tobacco control, which are very important to take into account when, as a country, we reimagine our tobacco control legislation and policies beyond Covid-19. 

On 9 June 2020, the World Trade Organisation’s (WTO) Appellate Body issued a report on the dispute brought by Honduras and the Dominican Republic against Australia: “Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging” put an end to the fightback against Australia’s plain packaging law.

According to the WHO, the more than 170 Parties, representing more than 85% of the world’s population, who have signed up to the WHO Framework Convention on Tobacco Control (FCTC) are encouraged to draw comparative lessons from best legislative and regulatory tobacco practices from other countries.

Coincidentally, this was the same day the Pretoria High Court set aside to hear the tobacco ban case. The WTO Appellate Body ruling finally settled the dust regarding the rationality and perceived trade-distorting effect of the Australian law that required tobacco products to be sold in plain packing [at para 6.459]. The WTO Appellate Body made some interesting comments on proportionality of the measures that go to the regulatory justification of the plain packaging law, and “encourage more countries to implement similar laws and thus reduce tobacco use globally”. 

“This is a crucial milestone in the fight against tobacco that should help safeguard future generations from deadly tobacco products. It is especially significant coming a week after World No Tobacco Day and the campaign led by WHO to protect youth from tobacco industry tactics. An industry making billions in profits at the expense of the health of its consumers, the poor and the global population,” said Dr Yannick Romero of the Union of International Cancer Control.

For Australia, the first country to introduce plain packaging of tobacco products in 2012, the WTO ruling is a vindication of a long-held position that the Scott Morrison government should not be impeded in taking action to protect public health.

“This is a fantastic win not just for Australia, but for governments around the world who want to reduce the terrible toll of sickness and death caused by smoking,” said Australian Minister of Health Greg Hunt. So emboldened has the Morrison government been by the WTO decision that the Australian government has a commitment to reducing smoking rates to below 10% by 2025. 

The WTO ruling has also been celebrated by the World Health Organisation (WHO) as a victory for global health and a vindication that plain packaging rules are justified, and are not unfair restrictions on trade. The enthusiasm with which the WHO received the WTO Appellate Body ruling should not come as a surprise to the tobacco industry. For instance, statements by the WHO during the World No Tobacco Day on 31 May 2020 points to the organisation supporting stricter measures against tobacco.

But most importantly, to bring back this discussion to the South African tobacco wars, it is notable that the WHO World No Tobacco Day campaign linked tobacco use to Covid-19. “This is especially important right now as studies show that smokers have a higher risk for a severe case of coronavirus,” states the WHO website.

I must hasten to say that in the scientific brief published this week, the WHO said it has no evidence of studies showing that smokers were more prone to contracting Covid-19. The World No Tobacco Day campaign, which ran under the theme, “Protecting youth from industry manipulation and preventing them from tobacco and nicotine use”, alleged tobacco industry manipulation to increase the demand for its products and alleged unscrupulous tactics the industry apparently employs to undermine governments’ tobacco control efforts. The serious allegation is that the industry would maximise its profit generation and customer or user base expansion at any cost.

“Nowadays, to get new users, the tobacco industry continues its misleading marketing through the novel and emerging products such as e-cigarettes and heated tobacco products. The industry promotes these products as ‘reduced harm’ or ‘cleaner alternatives’ with no objective science substantiating these claims,” claims the World No Tobacco Day campaign. 

…. only a small fraction of the 52 countries in Africa have pictorial warnings about the dangers of smoking on the packages of cigarettes that get sold. A caveat in respect to plain packaging in South Africa: Arguments have already been advanced that plain packaging requirements under the South African Draft Control of Tobacco Products and Electronic Delivery Systems Bill of  2018 are tantamount to expropriation of property and a bad idea. 

I will stay clear of who has the most convincing arguments scientifically between the pro-tobacco ban and the anti-tobacco ban groups in the context of the prevention of Covid-19 spread. What is clear, however, is that the WHO Global Action Plan for the Prevention and Control of Noncommunicable Diseases 2013–2020 aims to reduce the global prevalence of smoked and smokeless tobacco by 30% by the year 2025.

According to the WHO, the more than 170 Parties, representing more than 85% of the world’s population, who have signed up to the WHO Framework Convention on Tobacco Control (FCTC) are encouraged to draw comparative lessons from best legislative and regulatory tobacco practices from other countries.

If you are a tobacco user in South Africa, you probably are asking the question: What more can the government do to try to discourage people from smoking or to control tobacco? Is it retaining the ban until 2021? Are we about to see the expedited enactment into law of the Draft Control of Tobacco Products and Electronic Delivery Systems Bill of 2018 to introduce plain tobacco packaging as in Australia?

To date, 16 countries, none from the African continent, have adopted providing ministerial powers to implement plain packaging regulations. Australia, France, United Kingdom, New Zealand, Norway, Ireland, Thailand, Uruguay, Saudi Arabia, Slovenia, Turkey, Israel, Canada, Singapore (to take effect on 1 July 2020 for retail level), Belgium (to take effect on 1 January for retail level 2022), and Hungary (to take effect on 1 January for retail level 2022).

Further, only a small fraction of the 52 countries in Africa have pictorial warnings about the dangers of smoking on the packages of cigarettes that get sold. A caveat in respect to plain packaging in South Africa: Arguments have already been advanced that plain packaging requirements under the South African Draft Control of Tobacco Products and Electronic Delivery Systems Bill of  2018 are tantamount to expropriation of property and a bad idea. 

Reasons given against plain packaging by columnist Ivo Vegter on this platform are similar to those given against the tobacco ban during Covid-19, namely: the destruction of brand equity, consumers likely to be exposed to lower-quality products with health risks, and encouraging the proliferation of counterfeit and untaxed tobacco. The tobacco industry has also used every argument and tactic to derail the Bill.

“After a ‘great’ constitutional case, the tumult and the shouting dies. The captains and the kings depart. Or at least the captains do; the Queen in Parliament remains forever. Solicitors-General go. New Solicitors-General come. This world is transitory. But some things never change. The flame of the Commonwealth’s hatred for that beneficial constitutional guarantee… may flicker, but it will not die. That is why it is eternally important to ensure that that flame does not start a destructive blaze.” These were the words uttered by Justice Heydon in his dissenting judgment in the High Court of Australia [Matter No S409/2011].

The case dealt with the question as to whether all or some of the provisions of the Tobacco Plain Packaging Act 2011 (Cth) would result in an acquisition of property on unjust terms and contrary to constitutional guarantees [at para 241].

These words can resonate with smokers’ reaction after the Pretoria High Court confirmed as rational the South African government’s ban on tobacco products as part of its Covid-19 response strategy and the WTO confirmation of Australia’s plain packaging tobacco regulations – which has the potential to convince the South African government to consider plain packaging regulations.

The tobacco flame may flicker, but smokers appear not to be prepared to quit. For the tobacco industry, it is a case of aluta continua through the courts. On the other hand, national courts’ rulings on tobacco ban and the WTO Appellate Body ruling on tobacco plain packaging law signifies another dawn of the tobacco wars. DM

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