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SA Smoking Battle Rages (fwd)
Sunday Times (South Africa)
18 October 1998
Insight
The charge of the 'light-up'
brigade
Tomorrow, Parliament's health committee
will hear submissions on legislation aimed at curbing tobacco
advertising and smoking in public. RAY
HARTLEY looks at the arguments for and against the law
THE chairman of Parliament's health committee, Dr
Sokhaya Nkomo, gave up smoking last week as the
most widely lobbied legislation ever to hit
Parliament, the
Tobacco Products Control Amendment Act, was
introduced in the National Council of Provinces.
Nkomo's decision to quit was wise. Once the
law his
committee is considering is passed, he will be
unable to
smoke in his office in Parliament, in the
corridors, in the
canteen, in the bar, while playing snooker on
the second
floor, while travelling by taxi or while
dining at his
favourite restaurant.
The Bill with the portentous name has two major
objectives: the elimination of smoking in
public and the
ending of tobacco advertising.
Both objectives have ignited a bonfire of
lobbying by
powerful interests. Tobacco companies and
those who
carry their advertisements have mobilised
against the
advertising ban, and the hospitality industry
has taken up
the cudgels against the ban on smoking in public.
Far from diluting her legislation, the
lobbying appears to
have hardened the attitude of Health Minister
Nkosazana
Zuma. Last week, a new clause empowering her to
control the strength of cigarettes was
inserted into the
Bill, giving her the right to declare in the
Government
Gazette how much tar and nicotine they may
contain.
And she has produced a law that is close to
loophole-free. To "smoke" is defined in the
legislation as
"to inhale, exhale, hold or otherwise have
control over an
ignited tobacco product, weed or plant", and
public place
means "any indoor or enclosed area which is
open to
the public and includes a workplace and a public
conveyance".
Having "control over" has no doubt been
included to
cover those who will put down their cigarettes
and claim
not to be smoking as a policeman walks by
their office
window.
As if imagining the nooks and crannies of
Parliament
where Nkomo might retire for an illicit drag,
the law
specifies that a workplace also means "any
corridor,
lobby, stairwell, elevator, cafeteria,
washroom or other
common area frequented".
Among those fighting the total ban on smoking
in public
is non-smoker Luci Buckland of the
International Hotel
and Restaurant Association. Her message to the
Health
Department is: "We've got a reasonable
solution based
on correct ventilation that can accommodate
smokers
and non-smokers." Her association wants Zuma to
adopt the British model, where restaurants,
hotels and
the government are negotiating a compromise
that will
protect the rights of non-smokers to clean air
and not
alienate smokers from these institutions.
What exactly the impact of the ban on public
smoking will
be on restaurants and hotels remains a matter for
speculation. Says Hugh von Zahn, the chairman
of the
SA Restaurant Association: "We're concerned
about job
losses." He says that when a smoking ban was
introduced in California and in Massachusetts,
restaurants lost 20 percent of their business.
Von Zahn, also a non-smoker, runs a restaurant in
Simon's Town. With much of its seating in the
open air,
his smoking patrons are likely to continue to
climb into
Sunday breakfast on his patio and light up
afterwards
without fear of breaking the law. That, of course,
depends on whether the umbrellas, the awnings
and the
leafy canopy of trees outside count as the
trappings of an
"enclosed area", something lawyers will no
doubt spend
many hours in court trying to establish.
Zuma's reply to the concerns of the hoteliers and
restaurateurs is to point out that more than
70 percent of
smokers and 90 percent of non-smokers support
restrictions on smoking in public places. Far from
leading to job losses, she says, a reduction
in smoking
"would lead to a nett gain in employment in
all other
sectors of the economy".
Quoting from a University of Cape Town study on
employment in the tobacco manufacturing sector
in the
50 years ending in 1995, she says: "Let us not
be fooled:
the principal contribution of the tobacco
industry is not as
a source of employment or revenue, but its
contribution
is in the leading role it plays as sources of
illness and
premature death."
But the jobs debate has not been confined to the
slanging match between Zuma and the tobacco
industry.
Also ranged against Zuma are members of the ANC's
trade union federation ally, Cosatu. Unions
under its
umbrella, like the Food and Allied Workers
Union and
the SA Commercial, Catering and Allied Workers
Union,
are concerned at potential job losses that
will be caused
by the law.
Fawu's Reza Daniels is frustrated at Zuma's
refusal to
bend to pressure, even from her party's
political allies.
"She has not consulted us, she's spoken to us, but
remained intransigent to our suggestions."
Daniels, who
made "an educated choice" to quit smoking,
argues that
those who work on farms producing tobacco in
remote
rural areas will not easily find employment if
they lose
their jobs.
The 45 000 workers who may be laid off could
raise new
problems for Zuma. "We're going to get to a
point where
smoking is no longer a problem, but
malnutrition will be
a Department of Health problem."
On Zuma's "second front" - her ban on tobacco
advertising - the war of words has raged as
fiercely.
Those opposed to the ban have been led by the
Tobacco
Institute of Southern Africa, which has hired
the Sussens
Group to help it communicate its case. The
institute has
been trying to steer the debate away from the
health
consequences of smoking and onto the more
fashionable terrain of freedom of speech. Says the
submission the institute is to put before
tomorrow's
committee hearings: "Constitutionally
protected rights
and freedoms, such as intellectual property
and freedom
of expression, are impinged upon."
The Bill has effectively imposed "an almost
total ban on
communication by tobacco companies and other
parties
about tobacco products", says the institute.
And, it says,
Zuma has not consulted properly, has not passed on
information and has been "vague and ambiguous"
in the
legislation which will "result in a multitude
of unintended
consequences".
On the constitutionality of her actions, Zuma
says a
choice must be made: "If commercial speech needs
protection, then so, emphatically, do children
also need
protection. Almost every constitution
worldwide, including
our own Constitution, permits restrictions on
freedom to
protect the welfare of the public." Her job,
she says is to
"keep the tobacco industry's hands off kids"
by banning
all advertising, promotions and sponsorships.
Among those not impressed with Zuma's
intransigence
on the legislation is the recently formed
Freedom of
Commercial Speech Trust, which will not be
attending
this week's hearings.
It objects to what it sees as a determination
by Nkomo
and Zuma to push through the legislation
without taking
into account the views of those making
submissions.
The 180 written and verbal submissions are to be
presented to the committee, with each party
having 15
minutes to talk on its proposals and to field
questions. In
the words of Nkomo: "We are balancing openness
with
efficiency. You've got conflicting fundamental
rights - the
right of access to health and the right to
freedom of
expression. In the interests of the greater
majority, the
government has got to intercede on behalf of
the weak."
The brevity of the hearings and the chairman's
strong
views could make Nkomo's committee seem like a
pliant rubber stamp. Over the two days, Nkomo
will have
to show that he is willing to take seriously
the concerns
of the myriad opponents of the Bill without
compromising
legislation that the ruling party has pegged its
pre-election reputation on.
More immediately, he will have to sit through
the most
difficult week of his parliamentary career
without lighting
up.
Will he ever smoke again? "If I can survive
next week, I
think I'll be okay," he says.