Submission on tobacco regulations: FMF

26 June 2012

COMMENTS AND REPRESENTATIONS

to the

DIRECTOR-GENERAL OF THE DEPARTMENT OF HEALTH
(FOR THE ATTENTION OF THE DIRECTOR: HEALTH PROMOTION)

about the proposed

REGULATIONS RELATING TO SMOKING
IN PUBLIC PLACES AND CERTAIN OUTDOOR PUBLIC PLACES
[MADE KNOWN UNDER GOVERNMENT NOTICE R.264 OF 30 MARCH 2012]


1. Introduction

1.1. The Free Market Foundation of Southern Africa (also referred to here as ‘the Foundation’ or ‘the FMF’) comments as follows on the proposed ‘Regulations relating To Smoking in Public Places and Certain Outdoor Public Places’ (hereinafter referred to as ‘the proposed regulations’ or ‘the draft regulations’), which were published in the Government Gazette on 30 March 2012 with a Notice stating that interested persons are invited to submit comments or representations on the proposed regulations, within three months of the date of publication of the Notice.

1.2. The Notice was published on 30 March 2012. This means that interested persons can submit comments or representations by 30 June 2012.

2. Executive summary

2.1. The draft regulations are excessive and disproportionate limitations of fundamental rights to dignity, privacy, association and property. The regulations are not well designed or rationally connected to the statute’s apparent objective of deterring use of tobacco. The regulation prohibiting smoking on public beaches is void for vagueness. Municipalities in control of prescribed outdoor public places might not ensure compliance with the regulations. Our arguments appear in summary in the paragraphs below, and are set out fully thereafter in these representations.

2.2. The statute prohibits smoking in a ‘public place’, defined as any ‘indoor, enclosed or partially enclosed’ area open to the public, including workplaces and public conveyance. The context makes clear that a ‘public place’ probably includes private property to which the public are invited, even if they gain access only by paying an admission charge.

2.3. The statute provides, as a general prohibition, that no person may smoke in a public place. But the statute authorises the issuing of ministerial regulations which permit smoking in prescribed portions of public places on conditions set out in the regulations.

2.4. The Minister in September 2000 issued a relatively benign notice which declared certain specified public places to be permissible smoking areas, on conditions prescribed in the notice. The notice states that smoking is permitted in smoking establishments. It also states that smoking is permitted, subject to prescribed conditions, in: Bars, pubs, taverns and the like; nightclubs and casinos and other places of entertainment; restaurants, hotels, guest-houses, bed-and-breakfast places, game lodges and other places where accommodation is offered for sale; passenger ships registered in South Africa and passenger trains; workplaces; and airports. In the case of bars, nightclubs, restaurants, hotels, etc, workplaces and airports, the owner or person in control may designate portion of a public place as a smoking area, provided that: The designated area does not exceed a quarter of the total floor area of the place; the designated area is properly partitioned; the ventilation of the smoking area is such that air from it exhausts directly to the outside and is not re-circulated to any other part within the public place; and prescribed health messages and compliance warnings are displayed. Smoking in workplaces is subject to additional conditions. Smoking on passenger ships and trains is subject to special conditions.

2.5. The draft regulations of March 2012 propose restricting smoking to only outdoor parts of public places. And they propose the repeal of the benign regime established by the September 2000 Notice declaring specified public places to be permissible smoking areas. The draft regulations propose instead only that the owner or person in control of a public place may designate ‘part of an outdoor area of the premises’ as an area in which smoking is permitted. The draft regulations propose that smoking be forbidden in any indoor area which is open to the public. The current dispensation which allows smoking in permissible smoking areas in indoor (and enclosed and partially enclosed) public places will be revoked, despite the currently-applicable conditions that the areas are properly partitioned and their ventilation exhausts air from them directly to the outside without re-circulating it to any other part within the public places concerned.

2.6. The statute provides that the Minister may by regulation prohibit the smoking of any tobacco product in any prescribed outdoor public place, or such portion of an outdoor public place as may be prescribed, where persons are likely to congregate within close proximity of one another or where smoking may pose a fire or other hazard.

2.7. As mentioned, the Minister may prescribe outdoor public places or portions of outdoor public places, where smoking is prohibited. The draft regulations propose that no person may smoke in specified outdoor public places, namely: In stadia, arenas, sports facilities, playgrounds and zoos; in school premises and childcare facilities; in health facilities; in outdoor eating or drinking areas; in venues when outdoor events take place; in covered walkways or parking areas; in outdoor queuing or service areas; and in public bathing beaches not less than 50m from the closest person near the demarcated swimming area. The owner or person in control of the public place concerned will be obliged to ensure that no person smokes in violation of the proposed regulations. The draft regulations allow for a measure of relaxation of this proposed prohibition against smoking in the specified outdoor public places. A person in control of an outdoor public place may designate outdoor smoking areas.

2.8. Any such designated outdoor smoking area must conform to signage, demarcation and positioning requirements. Significantly, a designated outdoor smoking area must be ‘set aside exclusively as a smoking area’. And the owner or person in control must ensure that ‘no food or refreshment is served’, that ‘no entertainment is provided’, and that ‘smokers are discouraged from remaining in the area longer than is necessary to smoke a cigarette’. This will mean that, for example, at an outdoor public place such as a stadium, arena, sports facility, zoo, outdoor eating or drinking area, or venue at which an outdoor event take place, the owner or person in control should not locate a designated outdoor smoking area so that people in the smoking area can continue to watch the sports match or other event taking place at the venue, or be served with food or drink or provided with entertainment.

2.9. A person convicted of smoking in a public place where smoking is prohibited can be on conviction be liable to a fine of R500. The owner or person in control of an indoor public place who fails to comply with the proposed regulation obliging it to ensure that no person smokes there could be fined up to R100,000. And the owner or person in control of a prescribed outdoor public place, such as an eating or drinking area or a venue when an outdoor event takes place, who fails to comply with the proposed regulation obliging it to ensure that no person smokes there could likewise be liable to such a fine. Further, where the owner or person in control has set aside a designated outdoor smoking area which however does not conform with requirements prescribed by the regulations, or where he or she fails to ensure that no food or refreshment is served or entertainment provided in the designated outdoor smoking area, he or she could similarly be fined up to R100,000.

2.10. The statute has been amended to move the stress from discouragement of the advertising and promotion of smoking, to deterrence of smoking. The preamble to the statute, as inserted in 1999, stated that the legislature acknowledged that tobacco use was extremely injurious to the health of smokers and non-smokers and warranted ‘restrictive’ legislation in the public interest, considered that the extent of the effects of smoking on health called for ‘strong action’ to ‘deter people from taking up smoking’ and ‘encourage existing smokers to give up smoking’, and resolved to align the health system with democratic values and enhance and protect fundamental rights of citizens by discouraging use of tobacco products to reduce tobacco-related illness and death. This preamble did temper this robust approach by stating that the legislature acknowledged that tobacco use is a ‘widely accepted practice among adults, which makes it inappropriate to ban completely’. However, the preamble to the statute was further amended in 2007 by the inserting of an acknowledgment that tobacco use has caused ‘widespread addiction’, and by the deleting of the acknowledgment that tobacco use is a widely accepted practice among adults and inappropriate to ban completely. The preamble was also amended in 2007 by adding that the legislature resolved to align the health system with the ‘World Health Organisation’s Framework Convention on Tobacco Control’. That Convention states that States party to the Convention shall adopt and maintain tax and price measures, and non-price measures, to reduce demand for tobacco. Among the Convention’s stated non-price measures to reduce tobacco demand is that States party to the Convention shall promote economically viable alternatives for tobacco workers, growers and individual sellers.

2.11. The 2007 amendments also inserted into the statute the provisions authorising the Minister to prohibit smoking in any prescribed outdoor public place or portion thereof, where persons are likely to congregate in close proximity or where smoking may be a fire or other hazard. It can be concluded that the statute as amended aims now to deter, not merely smoking in indoor public places as was previously the case, but the use of tobacco generally. The proposed regulations seek to achieve this by preventing smoking in public, even where non-users of tobacco are not present or affected. The draft regulations propose that smoking outdoors in public places is not rendered comfortable or enjoyable. The draft measures do this by denying to persons smoking the benefit or facility of any entertainment or refreshment, even where the person in control of the place carries on business of providing entertainment or refreshment. This is arguably an unnecessary and excessively intrusive interference into private conduct. A smoker is not prevented from smoking or otherwise using tobacco in his or her private residence.

2.12. It is submitted that the ‘strong action’ embodied in the statute as amended and proposed regulations is disproportionate and constitutionally unjustifiable. These measures are unreasonable and unjustifiable in an open society based on human dignity and freedom, taking into account less restrictive means to achieve the purpose of the measures. 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. No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. Inconsistent laws are invalid. The state must respect the rights in the Bill of Rights, which applies to all law, and binds the legislature and executive.

2.13. Restricting smoking to designated outdoor smoking areas breaches the right to have one’s dignity respected. The proposed regulations will allow smoking only in designated outdoor areas, which will be devoid of pleasant or agreeable surroundings or amenities, even if the designated smoking area is in a public place of entertainment. This will have a symbolic stigmatising effect on smokers, breaching their fundamental right to dignity. It is submitted that the proposed regulations will for that reason be invalid, as the Constitutional Court ruled in relation to anti-sodomy legislation.

2.14. Designated outdoor smoking areas breach smokers’ right to privacy. It is strongly arguable that the proposed regulations, by requiring smokers to be isolated and inconvenienced in an open public place, infringe their intimate right to be let alone free of undue intrusion into their personal privacy. Privacy is an individual condition of life characterized by seclusion from publicity. A person is entitled to some degree of privacy even in the public arena. Individuals in a public space do not necessarily surrender their right to privacy. They have merely accepted that it may be infringed upon only in a manner that is reasonable in a public space. The invasion of privacy will only be justified where the community’s general sense of justice as perceived by the court dictates that the limitation is reasonable in the light of the interests sought to be protected, such as public safety. The invasion of privacy, even if permissible, must only go as far as is reasonably necessary. This means that the proposed regulations’ rules for smoking in a public arena or place of entertainment or refreshment should be subject to only such restrictions as are reasonably necessary in the interest of public health or safety. 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 nonsmokers.

2.15. Designated outdoor smoking areas breach smokers’ right to freedom of association. The proposed regulations will require that a smoker present in an outdoor place of entertainment or refreshment must, if she wishes to smoke, retire from the company of her companions, who may all be smokers, and go to a demarcated smoking area where no entertainment or refreshment is available, and where her friends are forbidden to accompany her unless they also intend to smoke then and there.

2.16. 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. Prohibiting all indoor smoking, even in cigar bars, and even if no nonsmokers are present or would be affected, is an unjustifiable deprivation of the rights to property of the owners and persons in control of the affected indoor public places. It is true that the right to protection of property is not absolute but subject to societal considerations. A deprivation of property is a substantial interference or limitation that goes beyond the normal restrictions on property use or enjoyment found in an open and democratic society. A deprivation of property is arbitrary as meant by the Bill of Rights’ property clause when a law does not provide sufficient reason for the particular deprivation. Where the property is ownership of land, a more compelling purpose will have to be established in order for the depriving law to constitute sufficient reason for the deprivation.

2.17. Banning smoking indoors is also disproportionate and unfair. The prohibition of smoking entirely in indoor public places even if no nonsmokers would be affected, is a disproportionate deprivation of the rights to property of the owners and persons in control of the affected indoor public places. It is also a disproportionate restriction on individual smokers’ rights to dignity, privacy and freedom of association. The rights in the Bill of Rights are subject to limitation: The rights may be limited, but only in terms of law of general application, to the extent that the limitation is reasonable and justifiable in an open democratic society based on human dignity, equality and freedom, taking into account relevant factors, including the nature of the right, and the nature and extent of the limitation. The determination of whether any particular limitation of a fundamental right is justified requires a ‘proportionality assessment’. 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. This implies a balancing of interests, which will vary from case to case. There are three important components of a proportionality test: First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair as little as possible the right or freedom in question. Third, there must be proportionality between the effects of the measures which are responsible for limiting the fundamental right, and the objective which has been identified as of sufficient importance. It is submitted that banning smoking indoors fails this proportionality test. The regulations impose undue inconvenience on smokers and undue harm on owners and persons in control of public places. The means employed by the draft regulations fail to avoid impairing the fundamental rights in question as little as possible. There is no proportionality between the effects of the measures on these fundamental rights, and the objective.

2.18. The Supreme Court of Appeal handed down judgment on 20 June 2012 in a case brought by a tobacco company to strike down the tobacco statute’s definition of ‘advertisement’ on the ground that the statute in consequence created unduly wide and unconstitutional prohibitions against the communicating of information about tobacco products. The Minister conceded in the case that the statutory provision indeed limited the company’s right to communicate information about its tobacco products to consenting adult tobacco consumers, and the smokers’ corresponding right to receive information. The issue for the court was whether this limitation was constitutionally justifiable. The court found that the public-health considerations addressed by the statute and the WHO Framework Convention make a compelling case for justification of a ban on the advertising and promotion of tobacco products. Accordingly, ruled the court, the statute’s limitation of the right to advertise or promote tobacco products was constitutional. At first blush, this judgment might lead one to conclude that the courts would similarly conclude that the proposed new measures to restrict smoking to designated outdoor smoking areas are also not unconstitutional. But this is not clear-cut: Banning smoking indoors, even where nonsmokers are unaffected, is not well designed to deter tobacco use. The measures in the draft regulations impair fundamental rights and impose inconvenience, yet probably won’t eradicate smoking. Tobacco isn’t forbidden outright, and smoking is still allowed in unlisted outdoor public places, private dwellings and places not open to the public. The regulations are not rationally connected to the deterrence objective. The measure is not carefully designed to achieve the objective in question, which is presumably to deter use of tobacco. The proposed regulations are not rationally connected to this objective of deterrence.

2.19. The provision in the draft regulations which would prohibit smoking on beaches is void for uncertainty. The draft regulation prohibits smoking on public bathing beaches within 50 metres from the closest person ‘near’ the demarcated swimming area. This wording, purportedly prohibiting smoking within a distance from the closest person ‘near’ the swimming area, is too uncertain and vague to be enforceable. The ultimate question is whether the regulation indicates with reasonable certainty to those bound by it what is required of them. The doctrine of vagueness requires that laws have to be written in a clear and accessible manner. The doctrine does not require absolute certainty of laws. What is required is reasonable certainty and not perfect lucidity. The law has to indicate with reasonable certainty to those who are bound by it what is required of them so that they may regulate their conduct accordingly. The doctrine of vagueness recognises the role of government to further legitimate social and economic objectives, and the doctrine should not be used unduly to impede or prevent the furtherance of such objectives. But laws, including regulations, have to be formulated in an accessible manner. So, the courts have ruled that a municipal bylaw which prohibited the erection of buildings on or ‘near’ any street or road frontage was void for uncertainty in so far as it prohibited building ‘near’ any frontage. And a municipal bylaw which provided that no hawker should for the purposes of his trade return on the same day to any spot, ‘or to the immediate vicinity thereof’ which he had already visited on that day for such purpose, was void for uncertainty. An order by an official not to plough ‘near’ watercourses was likewise held to be bad for vagueness.

2.20. 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. Despite the harsh fines that may be imposed on owners or persons in control of these outdoor public places for failing to ensure that no person smokes there or that their designated outdoor smoking areas comply with the regulations, it may be doubted if local governments have the resources to carry out their obligations. Municipalities are notionally liable to prosecution for criminal offences. But it is doubtful if the regulations will be enforced against cities and towns who contravene the new measures.

3. Statute regulates smoking on private property

3.1. The governing statute lays down that no person may smoke in a ‘public place’.

3.2. A ‘public place’ is defined to mean any ‘indoor, enclosed or partially enclosed’ area which is ‘open to the public’, and includes a workplace and a public conveyance.

3.3. That this definition of a ‘public place’ extends to private property is supported by the context: The statute has as a purpose the taking of stringent measures against smoking in the interest of public health. It defines a public place to include workplaces and commercial transport. The Act also controls smoking in motor vehicles when children are present, and regulates smoking in all enclosed workplaces, with an expressed exception for private dwellings in certain circumstances. And the statute not only regulates smoking: It also imposes various prohibitions or restrictions on the advertising, sponsorship, promotion, distribution, display and information required in respect of packaging and labelling of tobacco products; standards for manufacturing, importing and export of tobacco products; the sale or supply of tobacco products; and on free distribution or reward; and on selling tobacco products by way of vending machines.

3.4. It is evident from the wording of the statute, interpreted in light of the statute’s object, purpose and context described above, that the statute imposes prohibitions or restrictions over private property and businesses. It is therefore clear that its anti-smoking measures apply to private property and businesses.

3.5. It is also clear from the definition of a ‘public place’, as meaning an area which is ‘open to the public’, that it probably includes private property to which the public are invited, and even if the public gain access only by paying an admission charge.

4. Statute imposes blanket smoking ban in public places, allows regulations to permit limited exceptions

4.1. The statute provides, as a general prohibition, that no person may smoke any tobacco product in a public place.

4.2. The statute then provides that, notwithstanding this general prohibition, the Minister may permit smoking in the prescribed portion of a public place, subject to any prescribed conditions. ‘Prescribe’ means prescribe by regulation made by the Minister under the statute.

4.3. This means that the statute imposed a blanket ban against smoking in public places. But the statute authorises the issuing of ministerial regulations which permit smoking in prescribed portions of public places on conditions set out in the regulations.

5. Notice of September 2000 declared specified public places to be permissible smoking areas

5.1. The Minister in September 2000 issued a notice which declared certain specified public places to be permissible smoking areas, on conditions prescribed in these regulations.

5.2. This notice states that smoking is permitted in smoking establishments.

5.3. The notice also states that smoking is permitted, subject to prescribed conditions, in: Bars, pubs, taverns and the like; nightclubs and casinos and other places of entertainment; restaurants, hotels, guest-houses, bed-and-breakfast places, game lodges and other places where accommodation is offered for sale; passenger ships registered in South Africa and passenger trains; workplaces; and airports.

5.4. In the case of bars, nightclubs, restaurants, hotels, etc, workplaces and airports, the owner or person in control of the place may designate portion of a public place as a smoking area, provided that: The designated area does not exceed a quarter of the total floor area of the place; the designated area is properly partitioned; the ventilation of the smoking area is such that air from it exhausts directly to the outside and is not re-circulated to any other part within the public place; and prescribed health messages and compliance warnings are displayed.

5.5. Smoking in workplaces is subject to additional conditions. Smoking on passenger ships and trains is subject to special conditions.


6. Draft regulations of March 2012 propose restricting smoking to only outdoor parts of public places

6.1. As mentioned, the governing statute lays down that no person may smoke in a public place; a ‘public place’ is defined to mean any indoor, enclosed or partially enclosed area which is open to the public. But the Minister may permit smoking in the prescribed portion of a public place subject to conditions. The Minister has, by way of the (currently applicable) September 2000 Notice, declared specified public places to be permissible smoking areas subject to conditions prescribed in the Notice. The specified public places which the notice declared to be permissible smoking areas include bars, nightclubs, restaurants, hotels, ships, trains and airports. These places can be indoor premises.

6.2. The draft regulations of March 2012 propose that smoking in any public place be prohibited.

6.3. And the draft regulations propose the repeal of that September 2000 Notice declaring specified public places to be permissible smoking areas.

6.4. The draft regulations propose instead only that the owner or person in control of a public place may designate ‘part of an outdoor area of the premises’ as an area in which smoking is permitted.

6.5. This means that the draft regulations propose that henceforth smoking shall be forbidden in any indoor area which is open to the public. The current dispensation which allows smoking in permissible smoking areas in indoor (and enclosed and partially enclosed) public places will be revoked. This current dispensation permitting smoking areas indoors will be revoked, despite the current-applicable conditions that the areas are properly partitioned and their ventilation exhausts air from them directly to the outside without re-circulating it to any other part within the public places concerned.

7. Statute bans smoking in ministerially-prescribed outdoor public places where people likely to congregate closely or smoking may pose fire hazard

7.1. The statute provides that the Minister may prohibit the smoking of any tobacco product in any prescribed outdoor public place, or such portion of an outdoor public place as may be prescribed, where persons are likely to congregate within close proximity of one another or where smoking may pose a fire or other hazard. Prescribed means prescribed by regulation made (by the Minister) under the statute.

7.2. This means that the Minister may by regulation determine the categories of outdoor public places, or portions thereof, where smoking is prohibited, provided that people are likely to congregate or smoking may pose a hazard there.

7.3. The statute confirms that no person may smoke any tobacco product in any place so contemplated. This means that no person may smoke in any such ministerially-prescribed outdoor public place or portion thereof.

8. Draft regulations of March 2012 propose restricting smoking to only parts of prescribed outdoor public places

8.1. As mentioned, the Minister may prescribe outdoor public places or portions of outdoor public places, where smoking is prohibited.

8.2. The draft regulations propose that no person may smoke in specified outdoor public places, namely : In stadia, arenas, sports facilities, playgrounds and zoos; in school premises and childcare facilities; in health facilities; in outdoor eating or drinking areas; in venues when outdoor events take place; in covered walkways or parking areas; in outdoor queuing or service areas; and in public bathing beaches not less than 50m from the closest person near the demarcated swimming area.

8.3. The owner or person in control of the public place concerned will be obliged to ensure that no person smokes in violation of the provisions of the proposed regulations.

8.4. The draft regulations allow for a measure of relaxation of this proposed prohibition against smoking in the specified outdoor public places. Notwithstanding this prohibition, a person in control of an outdoor public place may designate outdoor smoking areas.

9. Draft regulations propose restricting smoking in public places to part of outdoor area of premises

9.1. As stated, the draft regulations propose only that the owner or person in control of a public place may designate part of an outdoor area of the premises as an area in which smoking is permitted.

9.2. Any such outdoor smoking area so designated must conform to signage, demarcation and positioning requirements.

9.3. Significantly, a designated outdoor smoking area must be ‘set aside exclusively as a smoking area’. And the owner or person in control must ensure that ‘no food or refreshment is served’, that ‘no entertainment is provided’, and that ‘smokers are discouraged from remaining in the area longer than is necessary to smoke a cigarette’.

9.4. This will mean that, for example, at an outdoor public place which is a stadium, arena, sports facility, zoo, outdoor eating or drinking area, or venue at which an outdoor event take place, the owner or person in control should not locate a designated outdoor smoking area so that people in the smoking area can continue to watch the sports match or other event taking place at the venue, or be served with food or drink or provided with entertainment.

10. Penalties

10.1. A person who contravenes the provision of the statute which prohibits smoking in a public place or the provision which prohibits smoking in a prescribed outdoor public place is guilty of an offence and liable on conviction to a fine not exceeding R500.

10.2. This means that a person convicted of smoking in a public place or prescribed outdoor public place can be fined R500.

10.3. A person who fails to comply with a regulation made under the statute is guilty of an offence and liable on conviction to a fine not exceeding R100 000.

10.4. This means that the owner or person in control of an indoor public place who fails to comply with the proposed regulation obliging it to ensure that no person smokes in that indoor public place could on conviction be liable to a fine of up to R100 000.