Unfair Consultative Meeting on the Control of Tobacco Products and Electronic Delivery Systems Bill

Honourable Minister Mkhize,

The Vapour Products Association of South Africa (VPASA) wishes to request the assistance of the Minister to halt the virtual consultation on the Control of Tobacco Products and Electronic Nicotine Delivery Systems Bill planned for 30 March 2021. As the Minister may be aware, the Department has refused to provide stakeholders with either a copy of the revised draft Bill from 2018, almost 3 years ago, or the updated SEIAS report in preparation for the meeting, essentially on the grounds that the session is not a public comment process and its outcome, even before holding the consultation, as per last official communication from the ministry, is unlikely to alter the proposals contained in the draft Bill materially.

VPASA is disappointed with the Department’s refusal to accede to the legitimate request of the invited stakeholders to receive the documents beforehand. We find the Department’s unwillingness to provide stakeholders with a copy of the revised draft Bill from 2018 and updated SEIAS report to be malicious in the extreme. Availing the requested documents would not harm the interests of the Department in the least. Instead, it would empower participants to share insights and better articulate concerns about, and alternatives to proposed policy
proposals by the Department. In this event, the consultation appears more like a box ticking exercise rather than an attempt by the Department to constructively consult stakeholders whose lives and livehoods will be heavily impacted. We had hoped that the launch of the National Policy Development Framework would herald a new era of collaboration in policy making between government and the society at large, including manufacturers, retailers and as importantly consumers. We are disappointed to note that we were wrong and call for your assistance to remediate this process to one that is fair to all South Africans who will be impacted.

We were thoroughly surprised to also see the disparity and unfairness in approach that we consider favoured the tobacco companies by inviting them individually as well as their respective associations whereas excluding 100s of small businesses from the vaping industry as well as importantly, consumer groups and representatives from the consultation. We deem this unfair. We take this opportunity to reiterate the opposition of the vaping industry to being lumped together with the tobacco industry, both in terms of the regulatory proposals, as well as the consultation processes being followed by the Department. We strongly reject the false parallels that the Bill seeks to draw between Electronic Nicotine Delivery Systems and combustible tobacco. There is clear scientific evidence to back this contention up. We are totally opposed to ENDS being regulated under the same law as tobacco, as they are at the opposite end of the harm spectrum. ENDS is a proven, harm reduced product with the ability of getting millions out of smoking. This is based on factual and empirical evidence from countries that have lead with science on the category, with the UK and New Zealand as clear examples. We appeal to you Honourable Minister, as a scientist, together with the scientific community, harm reduction specialists and the industry to hold a separate process of consultation to review the harm reduction possibilities of ENDS.

Copious amounts of new research has been done on ENDS in the intervening period of almost 3 years, since the draft Bill was published for comment in May 2018. There is indeed more scientific consensus that ENDS are a less harmful alternative to smoking and that, regulators must seek innovative ways to enable adult smokers to switch to ENDS. Our proposal for a separate process thus rests purely on empirical and scientific evidence. It has been stated by your Ministry that tomorrow’s consultation is not an extension of the public comments on the Bill, but is instead the second phase of the Socio Economic Impact Assessment System (SEIAS) process required to assess the impact the law will have on the affected stakeholders. Notwithstanding your Ministry’s assertion that “comments [submitted by stakeholders to date] did not result in material changes to the Bill” it is not reasonably possible, and is therefore procedurally improper, for stakeholders to be expected to provide additional comments on the economic impacts of the Bill when proposed revisions to the Bill have not been disclosed to those same stakeholders.

Moreover, given the quantum and materiality of the scientific developments that have been established since the Bill was published for comment in May 2018, a refusal to take into account those developments and allow for stakeholder comment on the same in relation to the operative provisions of the Bill is liable to render the Bill irrational, in the legal sense, for
failure to take into account relevant considerations.

We request the Minister to intercede on our behalf with the Department. We are convinced that following the right process now will save the government, industry, consumers and legislators a lot of angst which will result from the Department’s chosen course of action.

We look forward to your response.

Yours Sincerely,
Ms. Asanda Gcoyi