Court may struggle to find strong enough link between ban on tobacco and its intended purpose
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Upon returning to my car after acquiring essential goods, a gentleman approached me in the parking area and said, "R150 'n pakkie" (R150 a packet). I said no thank you, because I don’t smoke. But I do know from various sources that R150 is on the lower range of what a packet of cigarettes are now being sold for on the illegal market.
I thought how easy it would for me to actually buy cigarettes, how much money are being spent on cigarettes, and how much money the state is losing in sin tax. According to SARS, around R300 million. This got me thinking about the ban on tobacco and tobacco-related products and the rationale and justifiability thereof.
First the law. The Disaster Management Act of 2002 permits the minister assigned by the president to declare a state of disaster and further to make regulations in terms of the Act to deal with the disaster. The minister, in this case the Minister of Cooperative Governance and Traditional Affairs, Nkosazana Dlamini Zuma, can therefore make regulations in terms of section 27 of the Act.
The only provisions that would authorise the minister to ban tobacco and tobacco-related products appear to be section 27(n), which permits the taking of "other steps that may be necessary to prevent the escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster’. No other provision in the section can be considered authority for the ban.
Although section 27(n) is overly broad (it in fact being the catch-all clause), any regulation issued must be rationally linked to the purpose for which it is taken. It is argued, by the World Health Organisation and the minister that the banning of tobacco and tobacco-related products serves two purposes.
Firstly, smokers are at a higher risk of contracting the virus, as a) there is a movement from the hand to the mouth in smoking cigarettes, and b) people share cigarettes. However, the purpose of preventing persons from contracting the virus can be achieved by other means that would not require the wholesale ban of tobacco and tobacco-related products. These would include practicing proper hygiene practices, such as washing and/or sanitising of hands or products, preventing/banning the sharing of tobacco products, together with proper educational interventions. This reason is therefore relatively weak in justifying the ban on tobacco and tobacco-related products.
The second reason offered for the ban on tobacco and tobacco-related products is the health and associated risks it generates. It is argued that smoking has a negative effect on lung capacity and therefore makes it more difficult for the body to fight off the Covid-19 disease, which is a virus that attacks the cardiovascular and respiratory systems.
Recently, Minister Zuma argued that the use of tobacco products increases the risk of contracting a more severe form of the disease, which may have grave implications for hospital capacity. On the other hand, it is stated that it takes one to nine months after an individual has stopped smoking for the cilia in the lungs and respiratory tract to operate normally, which would decrease the risk of infection. (The cilia assists in breathing and in keeping the airways clear of dirt.)
So, there is a possibility that the ban on the sale of tobacco and tobacco-related products (depending on how long – 1-9 months – it takes for the lungs to clear) decreases the risk of infection and improve the person’s ability to fight off the virus. Up until here, it appears as if the ban is rationally related to the purpose of dealing with the Covid-19 disaster.
However, the possibility that the ban will be effective also depends on whether the ban has in fact been successful in preventing people from smoking. To this end, there appear to be conflicting findings.
On the one hand, the Human Sciences Research Council, on which the minister apparently also relies, found that "the majority of smokers (88%) were not able to buy cigarettes during the lockdown, suggesting that the temporary ban was efficient in reducing cigarettes access and therefore use". (Bear in mind this statement only relates to the buying of cigarettes and not the smoking of cigarettes.)
On the other hand, a study titled "Lighting up the illicit market: Smokers' responses to the cigarette sales ban in South Africa", by researchers from UCT, suggests that the ban has not been successful. The researchers (Van Walbeek, Filby and Van der Zee) found that 91% of the respondents were able to buy (and presumably therefore smoke) cigarettes during the lockdown. The data also suggests that the number of people who actually quit smoking due to the ban to be quite low.
Although the second reason for the ban is potentially a stronger reason, the reality of the effectiveness of the ban is highly questionable. It is open to doubt as to whether a court will find there is a strong enough link between the ban and the purpose of the ban to find in favour of thereof.
Given the loss of revenue, coupled with the illicit trade where it is in fact more difficult to enforce or control safe hygiene practices, the state may want to backtrack on the ban on tobacco and tobacco-related products.
* Bradley Slade is Associate Professor: Department of Public Law at Stellenbosch University and Editor of the South African Journal on Human Rights.
** The views expressed here are not necessarily those of Independent Media.