1. Oral Submission on the Tobacco Products Control Amendment Bill, 2008 to the Parliamentary Portfolio Committee on Health JT International South Africa (Pty) Limited Mike M. MABASA Head: Corporate Affairs South Africa Wednesday, May 07, 2008

2. Structure of our presentation Our positions on tobacco legislation About JTI: Who we are 1. Consultation Process 2. Vague & wide definitions 3. Over Regulation Our Conclusions

3. About JTI JT International has been in operation in South Africa since 1995; We are the 3 rd largest international manufacturer of tobacco products. In South Africa we hold a 7% market share of the industry; In SA we manufacture & distribute 9 internationally recognised brands; We directly employ more than 250 people; We operate 6 sales regional offices around the country and with a factory in Gauteng; We are members of the Tobacco Institute of South Africa (TISA).

4. JTI’s position on tobacco legislation Tobacco is and remains a legal product in South Africa; We all know and accept that with smoking come real risks; We believe that smokers’ and non-smokers’ alike should be informed and consistently educated about these risks; This is why JTI believes that Government, civil society and the industry have an important role to play in communicating these risks; We accept that the industry should be regulated considering these real risks associated with tobacco use; We therefore support Government's primary health objectives of reducing the rate of smoking and the health impact of tobacco use; We believe regulation should be developed inclusively and in consultation with all stakeholders within and outside of the industry;

5. JTI’s position on tobacco legislation continued … We believe regulations should be clear and implementable; We also believe that reasonable regulation should be informed by sound scientific research and coupled with appropriate consultation of all stakeholders; JTI believes that regulation should be complimented with responsible public health education and public health campaigns which will elevate public awareness on the risks of smoking; and Therefore, JTI supports the letter and the spirit of the Tobacco Products Control legislation in general and supports the national health objectives.

6. 1. Consultation Process The consultation process leading to these public hearings remains a concern the manner in which the Bill was processed is unprecedented; timing: from the invitation to comment, preparation of written submissions right through to presenting them before the Committee was remarkably inadequate; the opportunity for meaningful and robust engagement before the Bill is presented before this Committee was, as a result, suppressed; it is therefore, our respectful submission that, our ability to add meaningful value to this important law-making process was unduly undermined.

7. 2. Wide and vague definitions The wide and vague nature of some of the definitions is a concern, e.g: the prohibition on advertising and promotion is very broad and amounts to an unconstitutional infringement of our right to freedom of expression. It further prohibits formal communication through “any direct or indirect means”. The Bill suggests that - clause 3(1): “any commercial communication or action brought to the notice of any member of the public in any manner, with the aim, effect, or likely effect of - –promoting the sale or use of any tobacco product; or –creating an awareness of a tobacco product, tobacco product brand element or tobacco manufacturer We strongly recommend that this definition be reconsidered by the Committee.

8. 2. Wide and vague definitions continued … The definition of “brand element” is also broad and vague and we respectfully submit that; This definition doesn’t comply with the principle of the rule of law, which provides that laws (particularly a law which creates a criminal offence) must be formulated in a sufficiently clear manner so that those who are regulated by them know what is and what is not prohibited by the law. We strongly recommend that this definition be reconsidered by the Committee.

9. 2. Wide and vague definitions continued … The definition of “promotion” is also broad and vague and we respectfully submit that; Our most fundamental concern with this definition is that it is not confined to promotions aimed at the public. The effect of this is that promotions (i.e. simply fostering awareness and positive attitudes towards a tobacco product or a manufacturer) aimed at wholesalers and retailers with whom a tobacco manufacturer trades, will be prohibited; JTI submits that, in light of the fact that tobacco products are lawful, manufacturers must be free to communicate with wholesalers and retailers (who are not members of the public) in order to get their products to the market; Again, we recommend reconsideration of the definition.

10. 3. Over-regulation Charitable financial contributions the requirement that charitable financial contributions and sponsorships of a tobacco manufacturer or importer must be made anonymously should be reconsidered; Manufacturers and importers should be allowed to engage in corporate social responsibility, contributions to charities and sponsorships, provided that such contributions and sponsorships do not promote tobacco use; Displays at wholesalers the Bill should not provide for regulations to prescribe the manner in which tobacco products may be displayed at a wholesale level, as the display of such products does not have an impact on tobacco consumption. This provision should be reconsidered.

11. 3. Over-regulation continued … Point of Sale Signage the Bill should clearly specify that retailers may place signs at the point of sale, indicating availability and price of tobacco products consistent with the current provisions of the Act - Section 3(3); Sale of tobacco products at academic institutions the prohibition of sales of tobacco products at any place “where a person under the age of 18 years receives education and training” is too wide and amount to a disproportionate interference with the freedom of adults to choose to use and purchase tobacco products at educational and training institutions; This clause should be redrafted to prohibit such sales where the majority of the persons receiving education and training are under 18.

12. 3. Overregulation continued … Organised activity or event the inclusion of the phrase “the confirmation of use of a tobacco product” appears to be intended to prohibit a person from inviting another to attend an event because he or she is a smoker; This is not limited to public events and thus amounts to an unjustifiable infringement of the right to privacy; the Bill effectively criminalise a failure by an employer, owner or person in control of premises to "ensure" that certain events do not take place.

13. In conclusion Our Constitution demand stakeholder consultation with regards to the drafting and passing of legislation; The consultation process has been ignored and the period for comment before the Portfolio Committee was remarkably short, given the nature of the proposed changes to the legislation; Certain provisions of the Bill will have no public health impact at all; broad powers given to the Minister to regulate on various issues make the legislation, to some extent, un-readable without having sight of the regulations and therefore make it confusing, unclear and thus difficult to comment on meaningfully.

14. In conclusion … We believe that through a meaningful consultative approach, we can work effectively with the Government to address tobacco-related health concerns, and that together we can arrive at workable legislation; and finally, we respectfully recommend to the Committee that: we request that the legislation be returned to the Department and that the Department then consults meaningfully with the industry and other stakeholders : THANK YOU