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Laws to regulate e-cigarettes and heated tobacco devices are long overdue

Throughout South Africa, e-cigarettes are being sold in malls and, in violation of the law, promoted to the youth and those who have never smoked. The marketing of these products is deliberately designed to target young people.

Mounting evidence shows that tobacco use is associated with worse Covid-19 outcomes. People who use tobacco products are more likely to require mechanical ventilators and ICU treatment. They are also more likely to die than a coronavirus patient who does not smoke.

Unfettered access to tobacco products would have an impact on the number of severe Covid-19 cases. We have witnessed the strain this virus has placed on more developed healthcare systems in countries like the USA and Britain, and the South African government has to act swiftly to prevent health facilities from buckling under pressure.

Government has to protect the human rights of all people, including their right to access healthcare and to emergency treatment. There is widespread opposition to the temporary ban on tobacco sales, even though the industry prioritises profits over people when it comes to their health and welfare.

British American Tobacco South Africa (Batsa) and the Fair Trade Independent Tobacco Association (Fita) continue with their legal challenges for the ban on the sale of tobacco products during Level 3 of the lockdown to be lifted.

It is important to note that, as businesses which operate in the country, tobacco companies also have obligations and responsibilities when it comes to respecting human rights, starting with providing accurate information to consumers about the products they sell. Furthermore, their rights are not absolute, nor are they more important than public health.

International institutions such as the World Trade Organisation have recognised the importance of health, emphasising that preserving public health is “vital and important to the highest degree”.

The tobacco industry continues to rake in profits at the expense of taxpayers and the population at large: the country spends R59-billion in healthcare costs annually, while the state earns less than R14-billion in excise taxes. This leaves a deficit of billions to be paid by the taxpayer.

The narrative that the tobacco industry supports the South African economy is misleading: in fact, the industry consistently opposes tax increases which would benefit the country. Tax increases are among the most effective ways to reduce tobacco consumption, and would also offset the cost of tobacco-related harm to the economy. With the extremely low tax increases on tobacco products over the last few years, tobacco use continues to be a drain on the fiscus, health system and the economy – while the industry keeps raking in the profits.

In the past, the industry has challenged the ban on tobacco advertising, claiming a violation of their rights to freedom of expression. Back in 2008, the Tobacco Products Amendment Act introduced a comprehensive ban on the advertising and promotion of all tobacco products. The tobacco companies argued that this was unconstitutional as it denied them the ability to communicate with consumers. The courts upheld the advertising ban as constitutional, saying it reduced the demand for tobacco products and that the hazards of smoking for the entire population, both smokers and non-smokers, far outweighed the interests of the consumers who needed to get information from tobacco companies.

The courts also highlighted that the ban on the advertising of tobacco products was an obligation under the World Health Organisation’s (WHO) Framework Convention on Tobacco Control (FCTC) which South Africa had signed.

Globally, tobacco companies have been found to walk a thin line between doing business and violating human rights: in the US in 2006, they were found guilty of deceptive marketing and hiding the dangers of tobacco use from the public. In her judgment, US District Judge Gladys Kessler concluded that tobacco companies “marketed and sold their lethal products with zeal, with deception, with a single minded focus on their financial success and without regard for the human tragedy or social costs that success exacted”.

Previously, secret tobacco industry documents revealed that tobacco companies knew that tobacco and second-hand smoke were harmful and that nicotine was addictive, but they denied this for decades. This was only made public as part of the Tobacco Master Settlement Agreement (MSA) entered into between US states and four major tobacco companies (Philip Morris Inc., R J Reynolds, Brown & Williamson and Lorillard) in 1998.

The US states settled their lawsuits against the tobacco industry for recovery of tobacco-related healthcare expenses and have since recovered over $162-billion. Canada has also successfully recovered money from tobacco companies and Brazil recently filed a similar case.

Tobacco companies have intentionally marketed their products to children using a range of strategies, including flavouring tobacco and using social influencers and branded packaging. They view children as ‘replacement smokers’ who they recruit to maintain their market share and profits into the future. The World No Tobacco Day 2020 global campaign aimed at exposing tactics used in manipulating the youth and equipping them with information on the tobacco and vaping industries’ intentions to hook them on tobacco and nicotine products.

The Convention on the Rights of the Child (CRC) requires governments to ensure that children grow in an environment that is safe and healthy and which protects them from commercial pressure. This compels governments to protect children from starting smoking and developing a nicotine addiction. As such, measures like tax increases, or plain packaging which reduces teenage smoking and protects children’s rights, are important. Equally, challenges to such measures violate children’s rights.

In South Africa, companies continue to aggressively market tobacco products to children. New products like e-cigarettes and heated tobacco products are being marketed using sleek designs and sold in attractive kiosks in shopping malls. They have also used influencers on social media to attend their events, photograph and video them and share with their thousands and even millions of followers.

There are over 5,000 e-cigarette flavours (like bubble gum and chocolate doughnut) which are specifically designed to attract children and young people. Furthermore, no information about the impact on smokers is provided on the packaging, nor are the ingredients listed to inform consumers about what they are using. In continuing to leave out critical information about products on packaging, and in their communication to the public, human rights – including the right to information – are violated.

Most smokers start smoking in their teens, at a time when they are easily manipulated by aggressive marketing campaigns and feel the need to fit in with their peers. The tobacco and e-cigarette – or vaping – industry uses strategies that exploit these weaknesses in children and young people. They continue to do this while the WHO maintains that e-cigarettes increase the risk of heart disease and lung disorders. The global health body has also noted that conclusions cannot be drawn about their efficacy in helping people to stop smoking cigarettes, as they have been in use for a relatively short time. Long term impact is yet to be established.

Companies such as Philip Morris have widely marketed their heat-not-burn tobacco product, IQOS, as healthier, also suggesting that these are harmless to bystanders. This is despite growing evidence showing serious health risks that these products pose to both users and bystanders. The WHO cautions that there is insufficient reliable evidence to prove the claims that heat-not-burn cigarettes like Glo and IQOS are less harmful than cigarettes. Unlike e-cigarettes, which heat e-liquids that may contain nicotine, heat-not-burn tobacco products heat tobacco. They are electronic devices and look like e-cigarettes, but are different from e-cigarettes or vapes which do not contain tobacco.

Presently in South Africa, e-cigarettes or vapes are supposed to be sold only under prescription in terms of the Medicines and Related Substances Act of 1965. This would ensure that only adult smokers can access them. Instead, throughout South Africa e-cigarettes are being sold publicly in malls and promoted to the youth and those who have never smoked. This is in violation of the law. The design and marketing of these products are used to attract young people; hence it is not surprising that a study on students at the University of Cape Town concluded that e-cigarettes were perceived as healthier because of their pleasant smell. They were also viewed as a symbol of status because of the fancy designs.

The Control for Tobacco Products and Electronic Delivery Systems Bill 2018, when passed into law, will strengthen South Africa’s effort to reduce the numbers of people who smoke: this will save lives and reduce the health and economic impact of tobacco-related diseases.

Tobacco control policy is one of the key pillars to upholding human rights in our communities. When the current Tobacco Control Act was first passed in the late 1990s, these new products did not exist. The environment has changed and new products, like e-cigarettes and vapes, have surfaced. These have largely gone unregulated. Moreover, from 2012 the smoking rates have remained the same, necessitating a new law to urgently address these realities.

We have shown here just a few examples of the ways in which the industry actively undermines public health while being allowed to operate freely in the country. We call on government to act with speed to pass the Control for Tobacco Products and Electronic Delivery Systems Bill to ensure that the health and human rights of both smokers and non-smokers are protected. DM

Originally appeared in the Daily Maverick - Savera Kalideen and Sharon Nyatsanza are with the National Council against Smoking.

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