A recent study by a professor at the Respiratory Medicine department at the University of Cape Town was published on Business Tech and appeared on News 24. The study investigated the use of electronic nicotine delivery systems, otherwise known as “vaping” amongst high school learners, with the target group being learners from the Western Cape. The study provided some alarming data about the prevalence of vaping amongst learners, with one out of four learners admitting to being regular vapers. 

One out of 10 learners admitted to having their first vape within an hour of waking and also being unable to go through a whole school day without having to vape. Interestingly, most of the students cited stress and anxiety as the main reasons for vaping in contrast to a few students saying that they are vaping because of peer pressure or social prestige. 
This article will delve into the proposed bill recently introduced by Parliament in December 2022 with its short title being the Tobacco Products and Electronic Delivery Systems Control Act 2022  (hereinafter referred to as the bill) and how, if it is passed, it will affect or regulate this fast-growing industry and the implications for manufacturers, distributors, sellers and users who contravene any of the regulations contained in the Act.

E-cigarettes or electronic delivery systems allow people to inhale nicotine in the form of vapour. Essentially it is heating a liquid that contains propylene glycol, glycerine, flavourings, and other chemicals at around 300 degrees Celsius to produce a vapour that is inhaled into the lungs. Currently, it may contain unregulated chemicals that are carcinogenic.  

The bill aims to strengthen public health measures and awareness and to align the South African tobacco control law with the World Health Organisation Framework Convention. It will repeal the Tobacco Control Act No 83 of 1993. The proposed policy and legislative framework will introduce the following measures if the bill is passed: 
1. Indoor public spaces and certain outdoor areas will be determined 100% smoke-free; 
2. Ban the sale of cigarettes through vending machines;
3. Plain packages with health warnings and pictorials; 
4. Ban on display at the point of sale; and
5. Regulation and control of electronic delivery systems and non-nicotine delivery systems. 

The above measures will therefore regulate the sale and advertising as well as the appearance of tobacco products packaging. It will also standardise packaging, prohibit free distribution and prohibit the sale through vending machines. 

The bill acknowledges that tobacco use is hazardous, causing addiction and affecting users’ health. The bill also considers the effect on social economic development and the health system aiming to deter the use, especially amongst the youth. The bill aims to encourage users to stop and to protect non-users from the harmful effects of passive smoking. Advertising of tobacco and electronic delivery systems that create an association with social prestige, aspirations and lifestyles are prohibited under the bill. 

Offences and penalties related to the tobacco and electronic delivery of nicotine and non-nicotine devices are categorised as follows and have criminal implications for private users, sellers, distributors, employers, manufacturers, and advertisers. 

Some of the offences are listed in the below table: 

Table 1. Compiled from the Tobacco Products and Electronic Delivery Systems Control Bill. Section 16. Offences and penalties. 

Vaping remains largely unregulated as it does not form part of the current Tobacco Products Control Act 83 of 1993 or the Medicines and Related Substances Act (previously Drugs Control Act) 101 of 1965. The Tobacco Products and Electronic Delivery Systems Control Bill will repeal the Tobacco Products Control Act in its entirety and will surely be a positive move towards protecting youth from becoming users or being exposed to tobacco, nicotine, and other harmful chemicals.

In drafting the new proposed bill most state departments responded positively towards the bill. It was only the Department of Tourism that expressed concerns over the effect that 100% smoke-free regulations will have on the hospitality sector. 

The Department of Small Business Development raised concerns about the introduction of standardised and plain packaging of products. 

The new bill has also not been accepted positively by manufacturers, distributors and sellers of electronic delivery systems for the obvious reasons that it will affect vape store owners and vapers and that contravening the regulations could have serious criminalising consequences. 


WRITTEN BY HESRI ELOFF
Hesri Eloff is a Candidate Attorney at Miller Bosman Le Roux Attorneys.

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein.  Our material is for informational purposes.