EXPERT OPINION: What Parliament Needs To Get Right In SA’s Tobacco Control Bill

By Professor Olalekan Ayo-Yusuf, Chairperson/Head of the School of Health Systems and Public Health at the University of Pretoria, and Director of the Africa Centre for Tobacco Industry Monitoring and Policy Research

As Parliament moves into clause-by-clause consideration of South Africa’s Tobacco Products and Electronic Delivery Systems Control Bill, much of the debate has crystallised around a seemingly simple proposition: cigarettes, heated tobacco products and electronic cigarettes are different and should be regulated differently. The first part is indisputable; the second doesn’t follow automatically. Good legislation can differentiate between products while applying common rules where the public interest being protected is the same.

The bill already differentiates between products

It’s been claimed in parliamentary discussions that the bill treats combustible and non-combustible products alike. Yet its operative provisions tell a different story. Sections 4 to 7 set different requirements for different product categories. The language varies, too: requirements that the minister “must” prescribe for tobacco products are, in some instances, matters that he or she “may” prescribe for electronic delivery systems. Health warning provisions also distinguish combustible tobacco products from other products. The bill therefore provides a framework for proportionate regulation.

Some measures apply across products – particularly advertising restrictions, youth protections and use in shared public spaces – because the public health objective is common. Preventing youth initiation, nicotine dependence and involuntary exposure remains legitimate even where products differ toxicologically.

Reduced exposure isn’t reduced risk

Precision also matters when Parliament hears claims that newer products are “less harmful”. Some non-combustible products may expose users to lower levels of certain toxicants than cigarettes, but reduced exposure and reduced health risk aren’t scientifically interchangeable.

The distinction is illustrated by the US Food and Drug Administration’s (FDA) authorisation of particular IQOS heated tobacco products. The FDA permitted specific reduced-exposure claims concerning harmful chemicals; it did not declare the products safe. Its 2026 renewal continues to describe the authorised claim in terms of reduced exposure following complete switching. That distinction matters because chronic disease risk takes much longer to establish.

Parliament need not settle today’s scientific debate permanently in primary legislation. A more robust approach is to recognise evolving evidence, differentiate products, where justified, and retain sufficient regulatory flexibility to respond as evidence changes.

A future-proof law shouldn’t be built on harm reduction

Harm reduction is a legitimate scientific debate, but it shouldn’t become an organising principle of legislation that endures for decades. If future evidence establishes population health benefits from particular products, regulations can respond. If evidence moves in another direction, the same act should still protect the population.

Also, population impact depends on more than the toxicity of one product relative to another. It depends on whether smokers switch completely, continue smoking and vaping simultaneously, relapse to cigarettes, or whether non-users – especially young people – initiate use.

Parliament should pay attention to locally generated research rather than extrapolating uncritically from other countries. The relevant question isn’t whether e-cigarettes can help some smokers quit under particular conditions. It’s whether their availability is producing substantial switching at population level, and how that compares with dual use, continued smoking, relapse and initiation among young people.

Local population-level real-world evidence presented to Parliament deserves careful consideration, as it speaks to the lack of evidence of substantial switching at population level in South Africa. Instead, we’ve seen both smoking and vaping increase among young adults, and a new generation of nicotine-naïve adolescents starting to vape.

Consumer product or cessation medicine?

Products marketed as consumer goods require consumer-product regulation. If manufacturers wish to make therapeutic claims that their products are safe, effective smoking cessation aids, South Africa offers a medicines regulatory pathway through the South African Health Products Regulatory Authority. Current medicines schedules classify nicotine intended for medicinal use as a smoking cessation aid or tobacco product substitute within the medicines framework, with exemptions for registered nicotine replacement formulations and strengths.

Parliament should therefore be cautious about creating, through tobacco legislation, a lower evidentiary threshold for therapeutic claims than would be required of medicines. Importantly, consumer information and commercial promotion aren’t synonymous. Constitutional objections to restrictions on commercial communication are also not new. In 2012, the Supreme Court of Appeal considered British American Tobacco South Africa’s challenge to existing restrictions, including its wish to communicate directly with adult smokers about new products and claims that one tobacco product was less harmful than another. The court recognised that commercial expression is constitutionally protected, but held that its limitation was reasonable and justified under Section 36 when weighed against the public health purpose of tobacco regulation. Parliament should scrutinise the present bill for proportionality, but it should do so against this South African precedent rather than assume that restrictions on tobacco marketing are inherently unconstitutional

Standardised packaging isn’t blank packaging

Another source of confusion is the phrase “plain packaging”. The operative provisions of the bill concern standardising specific promotional characteristics of packaging. Brand or product identification, manufacturer information, health warnings, tax stamps and required authentication or tracking features can remain. The distinction is simple: standardising branding does not mean eliminating identification. This matters for the illicit trade debate. Enforcement depends on tax administration, authentication, supply chain controls, inspections and effective enforcement, rather than on colours or logos.

Economic arguments require perspective

Tobacco sales do not represent money that disappears from the economy when smoking declines – expenditure can shift to other goods and services, supporting economic activity and employment elsewhere. Tobacco excise also shouldn’t be confused with a net economic contribution by the industry: excise is ultimately paid by consumers.

A South African study estimated smoking costs at R42.3 billion or about 1% of the GDP in 2016, compared with about R12 billion collected in tobacco excise that year. These costs include healthcare, illness, premature mortality and lost productivity, with tobacco use also diverting scarce household income away from basic needs. The relevant economic question is not how many jobs or taxes the tobacco industry claims it “supports”, but whether South Africa is better off economically when fewer people become addicted, fall ill and die prematurely.

Illicit trade isn’t a reason for regulatory paralysis

Parliament should acknowledge that South Africa has a serious illicit-cigarette problem. A reasonable step would be to strengthen operative provisions supporting cooperation against illicit trade while preserving the bill’s primary public health purpose. Combating illicit trade requires coordinated action across revenue, policing, border management and health authorities. This should include stronger supply chain controls and progress on South Africa’s outstanding commitments to ratify the international protocol on eliminating illicit trade in tobacco products.

Evidence – and who produces it – matters

Transparency deserves greater attention, as tobacco and nicotine policy involves powerful commercial interests. Evidence submitted to policymakers should be considered not only for its conclusions but also for methodological quality, relevance to South Africa, funding sources and potential conflicts of interest. This doesn’t mean dismissing research merely because industry funded it, nor accepting evidence simply because it supports a public health position. The standard should be consistent: transparent funding and competing interest declarations, rigorous methods, appropriate interpretation and independent scrutiny.

Parliament should legislate for the future

Parliament should resist two extremes: pretending all nicotine products are identical, and accepting that every difference between products requires exemption from common public health protections.

The law should differentiate products where differences matter; maintain common protections where public interest is shared; require independent scrutiny of health claims; protect children and non-users; address illicit trade through enforcement architecture; and remain flexible to respond to evidence and products that Parliament cannot predict today.

South Africa doesn’t need a tobacco law built around today’s commercial categories – it needs one that can protect the public into the future.

Disclaimer: The opinions expressed in this article are solely those of the author and do not necessarily reflect the views of the University of Pretoria.