Government is hell-bent on passing a draconian anti-smoker bill that sweeps away all before it, including vapes.
The cumbersomely titled Tobacco Products and Electronic Delivery Systems Control Bill, for which I could use the snappy and elegant acronym TPEDS Control Bill, but which I will instead call the anti-smoker bill, is an awful piece of legislation.
Tabled by the Department of Health (DoH), the bill aims to prohibit smoking and vaping in all indoor public places and many outdoor areas, including any outdoor area within a set distance of a door or window. (This distance could be as much as 50m, which will effectively outlaw smoking in any high-density built areas.)
The bill will ban the sale of tobacco and vaping products through vending machines, and ban the sale of cigarettes in singles. It will mandate plain packaging with graphic health warnings and pictorials for both. It will also ban product displays at point-of-sale, which could spell death for vape shops and tobacconists alike.
(To add insult to injury, an enormous new tax has been slapped on vaping products, making them far more expensive and putting half of all retailers at risk of failure by year-end.)
The only thing the bill does correctly is to prohibit the sale of tobacco and vaping products to children under 18. Nobody – but nobody – argues that cigarettes or vaping should be marketed or sold to children.
Moralistic and prohibitional
I use the term anti-smoker to describe the bill because it not only brutally suppresses tobacco, but also non-tobacco products such as vapes; it makes it very hard for smokers to enjoy tobacco anywhere, even though it is a perfectly legal product; it makes it hard to sell and market these products and practically impossible to introduce new, improved products to the market; it offers no incentives for smokers to switch to less harmful products, and in fact denies that any alternative products qualify as ‘less harmful’; and it offers no incentives for smokers to quit other than inconvenience and the fear of punishment.
The DoH has ignored the views of industry stakeholders, independent scientists and international best practices. Instead, it is forging ahead with a brutal, moralistic and prohibitionist dogma spread by local and international anti-tobacco NGOs and the World Health Organisation (WHO) that, frankly, smells of Stalinism.
I wrote about the ideological battles over tobacco control on the occasion of the most recent meeting of the WHO’s Framework Convention on Tobacco Control (FCTC) in 2021.
Dishonestly rigid
The WHO is dishonestly rigid in its views. That rigidity reflects in South Africa’s anti-smoker bill, which obsequiously kowtows to the WHO FCTC.
Without any nuance and with complete disregard for the science, both draw a perplexing equivalence between any and all inhaled products, regulating them all with the same heavy hand regardless of their actual health-risk profiles, usage patterns and market dynamics.
The WHO’s description of ‘emissions from HTP [heated tobacco products] and ENDS/ENNDS [electronic nicotine delivery systems or electronic non-nicotine delivery systems, bureaucratese for vapes]’ incorrectly lumps together these three things, and says their emissions ‘have been found to contain toxicants, metals, nicotine (except ENNDS) and other harmful and potentially harmful substances’.
Sure. That could be said about the fumes in a kitchen, a mechanic’s workshop, or even ordinary city air, too.
An organisation such as the WHO ought to have the sophistication to recognise that the proper question is how many chemicals there are and at what doses they are inhaled.
The dose makes the poison, said Paracelsus. Everything is toxic in a high enough dose. Very few chemicals (even arsenic and cyanide) are truly toxic at very low doses.
For the purposes of legislation, the issue ought to be how risky non-tobacco vapour, heated tobacco, or chewed tobacco is, compared to cigarette smoke.
How dangerous is vaping compared to, say, an indoor wood fire in your house, standing around a braai, or living down-wind from a Witwatersrand veld fire?
Utter hogwash
Here’s the WHO’s great fallacy: ‘Evidence to date suggests that HTPs and ENDS/ENNDS generally contain lower levels of toxic substances found in cigarette smoke, but there is currently insufficient independent scientific evidence to conclude that they are less harmful than conventional tobacco products as their long term health impacts are as yet unknown. In addition to this, there is no evidence to suggest that reduced exposure to these toxic substances translates to reduced risk in humans. Accordingly, to protect public health, such products should be regulated under tobacco control laws.’
This is, not to put too fine a point on it, utter hogwash.
Let’s first leave aside HTPs. They use actual tobacco, so can legitimately be described as ‘tobacco products’, unlike vapes. Because they don’t combust the tobacco, they likely have a risk profile somewhere between vapes and ordinary combustible tobacco products.
The first vape was invented 20 years ago this year. It is true that we lack long-term studies of health in humans, but we also haven’t seen an alarming rise in vaping-related illnesses, which by now surely would have started showing.
In reality, vaping-related injuries have been very few and far between.
Everybody thinks vaping causes so-called popcorn lung, for example. However, that is only a hypothesised possibility of exposure to a particular butter flavour (diacetyl). It has been reported in the media only once, in Canada in 2019, but Canada’s government says ‘there have been no confirmed cases of popcorn lung disease as a result of vaping in Canada’, and ‘vaping is not known to cause popcorn lung’.
There was once an outbreak of lung disease related to the use of vitamin E acetate in a batch of black-market cannabis vaping cartridges, misleadingly reported by the Centers for Disease Control as being ‘associated with the use of e-cigarette, or vaping, products’, as if it was a risk to vapers in general. It wasn’t, and no incidents of such a lung disease have recurred, anywhere, ever.
That’s it, for actual evidence of harm, as far as I know.
Scientific evidence
There exist reams of scientific papers that assess the chemical composition of vapour (two orders of magnitude fewer chemicals than tobacco smoke, and in far lower quantities).
There are papers that evaluate the potential risks of both nicotine-containing vaping products and non-nicotine vape juices (very low), papers that investigate the rate at which non-smokers become vapers (extremely low), and papers that look at whether vaping is a good way to quit smoking (it is, and better than anything else).
Even if there really was no scientific evidence, a lack of evidence of a lack of harm is not evidence of harm. You ban something when there is evidence of harm, not when there is no evidence of harm but you’re hoping that one day there will be.
There are a thousand things we do that involve known risks that we don’t ban. There are a thousand things we do that may involve unknown risks. We don’t ban them all a priori, just in case.
In a free world, whether a person wants to take a risk with their own health ought to be entirely up to them, and not up to government nannies. We let people eat unhealthy diets. We let people drink alcohol. We let people participate in adventure sports. We let people engage in unsafe sex.
We do a million things merely for pleasure, even if they pose some risk. Very few people would agree that smoking tobacco is a worthwhile risk, and even the tobacco companies now agree about that. Still, it is none of the government’s business if you want to ruin your health.
The argument that if the government provides healthcare, they’re entitled to ensure that people are healthy so as not to be a burden on the state is also nonsense. On the contrary: smokers save government money, by dying about a decade before their non-smoking peers and thus requiring less geriatric care and social security.
Once we cede government the right to police our personal health, the next step is dietary interventions, and exercise regime interventions, and TV, social media and gaming restrictions, and forcing people to go outdoors and touch grass.
(I proposed a pro-vaping policy in 2021, and have written to debunk other vaping myths, too.)
‘No major causes of concern’
But back to the evidence. Public Health England (PHE), their equivalent of the DoH, keeps a regularly updated survey of the available evidence (while the WHO simply lied and said there was none).
It concluded that while vaping is not risk-free, it poses a small fraction of the risks of smoking in the short and medium term.
It found ‘significantly lower exposure to harmful substances from vaping compared with smoking, as shown by biomarkers associated with the risk of cancer, respiratory and cardiovascular conditions’, and ‘no significant increase of toxicant biomarkers after short-term secondhand exposure to vaping among people who do not smoke or vape’.
It said better studies than its own ‘found no major causes of concern associated with vaping’.
It said ‘vaping prevalence among adults who have never smoked remained very low, at between 0.6% and 0.7%’.
It also said: ‘[V]aping products remain the most common aid used by people to help them stop smoking. In stop smoking services in 2020 to 2021, quit attempts involving a vaping product were associated with the highest success rates (64.9% compared with 58.6% for attempts not involving a vaping product). The stop smoking service data are consistent with the latest evidence from the Cochrane living systematic review on electronic cigarettes for smoking cessation which also shows vaping is effective for stopping smoking.’
(As a personal aside, I quit a 35-year pack-a-day smoking habit by switching to a vape. Within six months, I was also able to quit the vape. I know many others who have done so, or are doing so. The South African Department of Health should applaud such cases, but they refuse to even acknowledge that they exist.)
‘Swap to stop’
PHE is so convinced of its position that it is enrolling one million smokers (one fifth of all smokers in England) into a ‘swap to stop’ programme, in which they will be given vaping starter kits and behavioural support to quit smoking. This is part of a series of measures to reduce smoking prevalence in England to 5%, which is the international standard to be considered ‘smoke-free’.
PHE expressed concern about the false perceptions that have been created among the public: ‘In 2021, only 34% of adults who smoked accurately believed that vaping was less harmful than smoking. Only 11% of adults who smoked knew that none or a small amount of the risks of smoking were due to nicotine. Inaccurate perceptions need to be addressed. … Interventions on absolute harms of vaping that aim to deter young people need to be carefully designed so they do not misinform people (particularly smokers) about the relative harms of smoking and vaping.’
The South African DoH simply refuses to engage on the notion that ‘relative harms’ are a thing.
Two years ago, the US Food and Drug Administration (FDA), despite prohibiting (wrongly, in my view) the marketing of flavoured vape liquids, permitted the marketing of vaping products as ‘appropriate for the protection of public health’.
The South African anti-smoker bill prohibits all marketing of vaping products.
‘Sensational public health gains’
Sweden is set to become the first country to reach the 5% ‘smoke-free’ target this year – 17 years before the EU target date. It did so by embracing harm reduction as a strategy.
Smoke Free Sweden 2023 says: ‘During the last five decades, the Swedes have progressively and systematically made smokeless and less harmful alternatives to cigarette smoking accessible, affordable, and acceptable to their population. In supporting these smoke free options such as snus and, in recent years, oral nicotine pouches and e-cigarettes (otherwise called vaping products), their pragmatic, enlightened approach has delivered sensational public health gains.’
The stats don’t lie: Over the past 15 years, Sweden slashed its smoking rate from 15% in 2008 to 5.6% today. The EU’s average smoking rate is currently 23%, or almost five times higher than that of Sweden. Just 3% of Swedish people aged between 16-29 years smoke compared to 29% of other Europeans aged 15-24 years.
As a result, Sweden’s incidence of cancer is 41% lower than the rest of its European counterparts, corresponding to a 38% lower level of total cancer deaths. Twenty-four of the other 27 EU Member States have a tobacco-related mortality rate twice as high or more as Sweden relative to population size. Sweden has a 39.6% lower rate of death of all tobacco-related diseases compared to the EU average. Sweden is one of the three countries with the lowest number of deaths attributed to lung cancer.
The science is clear, but the DoH doesn’t want to hear about harm reduction and alternative nicotine products. It has a big hammer, and the anti-smoker bill simply defines everything to be a nail.
It wants to make it highly unpleasant to smoke, even more unpleasant to quit, and almost impossible to sell either tobacco products or harm-reduction products like non-combusting tobacco or vapes.
Illicit market
The bill does absolutely nothing to achieve its stated goal of encouraging existing users to quit other than near-total prohibition and severe punitive measures of up to 10 years’ imprisonment for violating the new rules.
The government also did not learn from its catastrophic tobacco ban in 2020. For five months, it gave free rein to illicit tobacco producers to flood the market with untaxed and unregulated products of dubious quality. Today, those illicit producers still control as much as 70% of the total market for cigarettes.
What the DoH is really doing is to legislate the legal market out of business by invalidating their brands (which is a court case about expropriating private property waiting to happen) and prohibiting them from marketing their products in any way whatsoever.
The informal sector accounts for 83% of all cigarettes sold, and many of them are sold in singles. Most of this will now become illegal. How can a street trader sell cigarettes without displaying them?
Thousands of small businesses, and tens or hundreds of thousands of jobs are at risk, because of the draconian, prohibitionist stance of the new bill.
Ironically, South Africa already has good tobacco regulation in place, but it is not enforced, as the dominance of illicit tobacco products demonstrates. The minimum tax on a pack of 20 is R23.92, and yet you can get a pack for less than R10 if you go to a retailer that flies under the radar.
This is why only 13 billion cigarettes, out of a total market estimated at 37 billion, are taxed. This is why instead of R54 billion, the government collects only R19 billion in tobacco taxes. This is why smoking incidence in South Africa is rising.
The government has been unable to enforce its existing regulations. Now it proposes to impose far more draconian regulations that also will be implemented haphazardly, if at all.
The DoH isn’t so much regulating the market as it is handing the tobacco trade to the illicit market on a silver platter. Black-market products are often of lower or unascertainable quality, placing both smokers and vapers at greater risk. It gives smokers little to no incentive to use proven methods, like vaping, to quit. It isn’t so much anti-tobacco as anti-smoker, and it will backfire dramatically.
The DoH should heed the examples of England and Sweden, instead of forging ahead with whatever poison the anti-tobacco extremists are pouring into its collective ear.
The public comment period on the TPEDS Control Bill closes in three weeks, on 28 July 2023. Written submissions on this atrocious piece of legislation can be sent to tobaccobill@parliament.gov.za or submitted online at https://forms.gle/FLrhnvThDk8ccLG97.
[Image: A staged scenario in which a police officer arrests a street vendor of single cigarettes, produced as part of a Stop the Bill campaign (https://www.stopthebill.co.za/) run by Limpopo Tobacco Processors.]
The views of the writer are not necessarily the views of the Daily Friend or the IRR
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