Department of Health Rries to Force Contentious Tobacco Bill Through Parliament Without Consultation

Source from:  12 March 2008 The Tobacco Institute of South Africa 03/13/2008

The National Department of Health (DOH), led by the Director-General (DG), yesterday, 11 March, briefed the Health Portfolio Committee (HPC) in the National Assembly on the proposed Section 76 Tobacco Products Control Amendment Bill. Francois van der Merwe, CEO of the Tobacco Institute of SA, (TISA) expressed his shock, surprise and disappointment with the process followed by the DOH. An advertisement was placed in the Sunday Times of 9 March, calling for written submissions on the Bill by 20 March, and public hearings on 25 and 26 March. The Bill was only available at the Government Printer on Monday 10 March 2008. This gives all interested stakeholders 9 days to make written submissions and oral submissions 5 days later. It makes a mockery of democratic principles and wastes the time of Parliament. Today it was presented to the HPC in a very unprofessional way and it attacked the integrity of an Industry which conducts its business in a very professional and responsible way and makes a massive contribution in this country. Of course the Industry could only attend the meeting and could not voice an opinion. Below is a letter which the TISA CEO handed to the Chairman of the HPC. The Chair arranged for the letter to be distributed among committee members. The DOH will formally brief the HPC on the Bill next week. In the memorandum to the Bill, the DOH claims consultation with the Tobacco Industry, which is a blatant effort to mislead the Committee, and paint a picture which is not true. It is virtually impossible for any stakeholder to make a written submission on such a contentious Bill within 10 days. The Industry received this Bill together with the general public. This is totally unacceptable and in the letter below we highlight mainly the non-consultation matter. 1.Consultation Since the completion of the Section 75 Bill process in 2007, no consultation or engagement whatsoever has taken place with TISA or any of its members. This is despite the Health Portfolio Committee (HPC)'s urgent requests last year to engage with the Industry in developing tobacco regulation. TISA took the initiative and arranged a meeting with the Department of Health (DOH) on 16 November 2007 to discuss legislative matters and implement a working method between Industry and the DOH as is already in existence between Industry, SARS and Treasury. This meeting was unilaterally cancelled by the DOH without reasons given. Further letters and actions by TISA to request meetings with the DOH, have to date not delivered any result. This can be proven. It will be impossible for the DOH to prove consultation with the Industry. If they claim a meeting 3 years ago as consultation, this is surely unacceptable and cannot be claimed as consultation. Apart from the Industry, the DOH has not, as far as we are aware, consulted with SARS. Increased illicit trade always goes hand in hand with tighter regulation of the Industry. It is the responsibility of SARS to have an input in any matters relating to higher taxes and tighter regulation of the Industry. The purpose of engagement is inter alia to save time for the HPC. Once legislation reaches the committee stage, most of the contentious issues in the proposed Bill should be ironed out between the DOH, the Industry and other roleplayers. The DOH will say the FCTC warns governments to avoid engagement with the tobacco industry. In the spirit of the SA Constitution, this is totally unacceptable and it makes a mockery of our democracy, and it wastes the time of the Committee. 2. FCTC Requirements It is NOT necessary for the Section 76 Bill to be passed in order for SA to comply with the FCTC requirements of packaging and labeling. This can be done by way of regulation. The Industry is aware of the DOH's obligations and will work with the DOH to meet them. However, the DOH needs to sit down with the Industry and work out a schedule as there are practical implications to this matter. This can only be resolved in a consultative process. 3. Financial Implications The Section 76 Bill will no doubt have financial implications for the Industry and other stakeholders. Has the DOH done any research on what those implications might be across the board for all stakeholders, including affordability and practicalities around implementation? We all know there is a direct link between cost of compliance and the growth in illicit trade. These matters need to be taken into consideration in a proper consultative process. Has the DOH researched the cost of enforcing this Bill? It has implications for Local Government and will have financial implications for the State. The homework by the DOH is so weak - they even mention a gain for the State by the prohibition of duty-free and tax-free sales of tobacco products, which is not even in the Bill any longer. The DOH is trying to mislead Parliament if they claim there will be no cost to the State. It will be interesting if the DOH is asked to prove the consultation they claim in the memorandum with all the various state departments. Most government departments don't regard the DOH as being co-operative or consultative in nature. 4. The Legal Position The process embarked upon by the Health Portfolio Committee and reflected in the advertisement published in the Sunday Times of 9 March 2008 may be in breach of the National Assembly's own procedural rules. Rule 241 of the National Assembly Rules provides for the publication of a bill and an invitation to interested persons and institutions to submit written representations. Rule 240 obliges every committee of the National Assembly to "arrange its business in such a manner that interested persons and institutions have a period of at least three weeks after the draft bill or particulars of the draft bill have been published ... to comment on the proposed legislation" . The 2008 Bill will, if approved, have massive implications not only for the tobacco industry, but also for the wholesale and retail sectors, the hospitality industry, the beneficiaries of corporate social investment and others. Given these implications, it was incumbent on the Health Portfolio Committee to allow for a meaningful period in which interested persons and institutions can make submissions on the 2008 draft Bill. It is noteworthy in this regard that, when draft regulations are introduced in terms of the Tobacco Products Control Act, a minimum of three months is provided for, to enable interested persons and institutions to comment. If three months is the minimum period for draft regulations, then surely provision should have been made for a similar period in relation to a bill of this significance? In this regard I must pertinently refer you to both the Doctors for Life and Matatiele judgments, both of which highlight very strongly the extreme (even indispensible) significance of the public participation stage of the legislative process. I have been advised by our legal advisors that, if the 2008 Bill is rushed through Parliament (as appears to be the case, given the very truncated comment period), it will fall to be set aside on a similar basis to that articulated in both the aforementioned judgments. 5. Actions by Industry If this Bill process continues as planned, the Industry will have no choice but to exhaust all avenues to demonstrate how legislation should not be approached. This could mean serious embarrassment for the DOH and a waste of the Committee's time. We seriously and respectfully request the Committee to refer this Bill back to the DOH and insist on a proper process before it is brought back to the Committee. There is NO need to rush this Bill. Enditem