| Here's how the state justified the tobacco ban in court. Will it be enough?

Can the government justify its decision to ban the sale of tobacco products based on what the Fair Trade Independent Tobacco Association (FITA) says are a few inconclusive studies, especially when people have not stopped smoking and its good intentions are mostly proving to have created a breeding ground for the black market?

This is the question the Pretoria High Court judges were left to apply their minds to after FITA tore into the state's argument that banning sales will reduce smoking in the country - and has, in fact, already done so.

The association, which said it represents all local tobacco manufacturers in SA, challenged the ban of tobacco sales because it believes the Minister of Cooperative Governance and Traditional Affairs, Nkosazana Dlamini-Zuma, overstepped her powers with the ban.

It also argued that the utterance by President Cyril Ramaphosa, in his speech on 23 April, could not have been an uninformed decision that had not been deliberated by the National Coronavirus Command Council (NCCC).

In court, FITA's lawyer, advocate Arnold Subel SC, added that, because of its addictive nature, tobacco is as essential to smokers as food is to everyone and, therefore, it should have been allowed, even at lockdown Level 5.

Ban based on available literature

However, the state says Dlamini-Zuma was fulfilling her constitutional obligation, which demands of her to act fast when "emerging" literature suggests that smokers have a higher risk of developing a more severe form of Covid-19. The NCCC also received a plethora of submissions against the sale of tobacco, said the state's lawyer, advocate Marumo Moerane SC.

"Action has to be taken on the basis of what is known. What science tells us at present, and what science tells us is probable has to guide the actions of the state," said Moerane.

The state relied on the World Health Organisation's (WHO) 11 May statement, which said public health experts found that smokers are more likely to develop severe disease with Covid-19, compared to non-smokers.

Moerane said the government's "conservative" estimates showed that, if just 1% of the estimated eight million smokers in SA needed intensive care because of Covid-19, this would overwhelm the healthcare system. The ban, he said, is thus put in place to reduce the availability of cigarettes in the country.

He said the Human Sciences Research Council (HSRC) study in April, which found that 88% of smokers interviewed were not able to buy cigarettes during the lockdown, showed that the government's efforts were paying off.

But data is not conclusive

But FITA's legal team argued that the WHO's statement was inconclusive as it did not have enough information to study any possible link between tobacco and prevention of Covid-19.

Representing the association, Subel said the HSRC study also did not provide evidence that the availability of tobacco products has indeed been reduced. But, most importantly, it did not show that people stopped smoking because only sales are banned - and some people stocked up, while others are buying in the black market.

The association cited the University of Cape Town study, which found that 90% of its 16 000 survey respondents had purchased cigarettes during the lockdown. This study showed that smokers moved to spaza shops, house shops and other sales outlets that either did not exist or were inconsequential before the lockdown.

The black market boom

The state's argument was solely focused on how the ban benefitted public health.

Corné van Walbeek, principal investigator of the Economics of Tobacco Control Project at the University of Cape Town, said the state avoided the illicit trade argument because there is no denying that it has gone out of control.

"What we found in our UCT study is that illicit trade has become a bigger problem in the later stages of the sales ban. The state doesn't want to recognise that illicit trade is a very big problem," he said.

Van Walbeek said there was indeed some public health wins resulting from the ban, as 16% of people sampled had successfully quit smoking.

As the judges adjourned the case, promising to expedite the judgment, smoke from hawkers and passers-by outside the court gates gave a glimpse of how the underworld is thriving because of the ban.

Car guard Sipho Mthembu said one "loose" of the previously cheaper brands of cigarettes now retail for R5, from R1 before the lockdown.

"We buy. If you are not prepared to pay R5, where are you going to get it?" he said.

Dr Azar Jammine, director and chief economist of Econometrix, said the illicit trade players might have raised their prices due to demand, but they are probably still selling their products for less than what the excise duty is on a 20 pack of cigarettes. For instance, research he did a year ago showed that they were selling a 20 pack for R10, whereas excise duty alone for the same pack in the formal market was R17.

"Already the illicit trade had ballooned in recent years and up to 40% of all cigarettes sold were being sold illegally," said Jammine.

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