Press release: Effective ban on smoking

Press Release from the Free Market Foundation

28 June 2012

Free Market Foundation: The Department of Health’s proposal is an effective ban on smoking

Government’s interference a threat to rights of individuals, private property owners and bad for business

The Department of Health’s proposed new measures to tighten smoking regulations under the Tobacco Products Control Act are excessive and infringe disproportionately on the fundamental rights of individuals and private property owners. They are unconstitutional and have damaging economic implications,” says Leon Louw of the Free Market Foundation.

The Draft Regulations, if approved, will see an effective ban on smoking in any public place and will make the dedicated smoking areas in public establishments - required by existing regulations – obsolete. Smoking in any building, outdoor venue, public or private beach, outdoor drinking or eating area, park, walkway, parking area or within ten metres of any doorway or window will be prohibited through these regulations, effectively limiting the places where people can smoke to inside their homes.

Of concern to the FMF is the impact of the regulations on businesses especially within the hospitality industry, incorporating restaurants, bars, nightclubs and casinos. No provision is made for smoking establishments at all, which means that if the draft regulations are passed into law, establishments which cater to smokers alone will be banned and put out of business.

The FMF’s submission to the Department raises concerns over what are deemed to be acceptable limits for Government to impose on the conduct of its citizens. Two criteria must be satisfied in order to establish that the limitation of a right is reasonable and demonstrably justified in a free and democratic society. The first relates to the objective or purpose of the limitation, and the second to the aspect of proportionality. The objective must be sufficiently substantial and important to warrant overriding a constitutionally protected right. The proportionality test requires that the means chosen to limit the right are reasonable and demonstrably justified.

Excessive are the fines they propose imposing. A person convicted of smoking in a public place where smoking is prohibited can, on conviction, be liable to a fine of R500. The owner or person in control of an indoor public place, however, who fails to comply with the proposed regulation, can be fined up to R100, 000. Many if not most sports facilities, playgrounds, zoos, school premises, childcare facilities, health facilities and public bathing beaches are owned or controlled by municipal or provincial governments. It may be doubted if local governments will have the resources to carry out their obligations in the first place. And secondly, although municipalities are notionally liable to prosecution for criminal offences, it is doubtful if the regulations will be enforced against them, or any cities and towns who contravene the new measures if they are made into law.

The draft regulations will make smoking outdoors in public places neither comfortable nor enjoyable, by denying smokers the benefit or facility of any entertainment or refreshment, even where the person in control of the place carries on a business of providing entertainment or refreshment. This is arguably an unnecessary and excessively intrusive interference into private conduct and infringes on the right to privacy and the right to freedom of association. The proposed regulations go further than what is reasonably necessary, in requiring isolation of smokers in designated smoking areas, even where no non-smokers are present and smoking outside the designated area would not affect non-smokers. The proposed regulations’ rules for smoking in a public arena or place of entertainment or refreshment should be limited to ones that are reasonably necessary in the interest of public health or safety.

When it comes to the effect these measures would have on private business, the prohibition of indoor smoking is a disproportionate interference with property rights. The Bill of Rights states that no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. Dictating how a private property owner may conduct his business usurps his rights over that property.

The wording of the provision in the draft regulation that prohibits smoking on public bathing beaches within 50 metres from the closest person ‘near’ the demarcated swimming area, is too uncertain and vague to be enforceable, and, constitutionally, is void for uncertainty.

The FMF earnestly submits that the ‘strong action’ proposed is unreasonable and constitutionally unjustifiable in an open society based on human dignity and freedom. The Bill of Rights states that everyone has the right to have their dignity respected, the right to privacy, and the right to freedom of association.

“We should not lose perspective on the question of how restrictive a society we want to create,” says Louw. “How far do we want to allow government to trespass on our constitutional rights and reduce individual autonomy, especially to the extent of controlling what can be perceived as self-destructive behaviour? How can we allow laws that will undoubtedly harm our country’s economy by putting people out of business and make our unemployment situation even worse?”

Ends

Notes to editors:
Copies of the Free Market Foundation’s submission to the Department of Health are available on request.
Deadline for comment is 29 June 2012.