The Portfolio Committee on Health on Wednesday adopted a motion of desirability on the Tobacco Products and Electronic Delivery Systems Control Bill. This procedural green light allows the committee to move into detailed, clause-by-clause deliberation. That work now matters enormously.
Before turning to what remains to be done, it is right to acknowledge what has been achieved.
For the first time in the long life of this legislation – first mooted in 2018 – the principle of differentiation between combustible tobacco products and non-combustible nicotine products has been formally accepted. The Department of Health has recommended, and the committee has welcomed, exemptions for non-combustible products from the most stringent plain-packaging and graphic health-warning requirements that will continue to apply to traditional cigarettes.
This is a meaningful step forward.
It reflects a recognition that vapes, pouches, snus, and heated tobacco products are not the same as cigarettes. The science is clear and the international evidence is compelling: switching from combustible cigarettes to non-combustible alternatives dramatically reduces harm. Millions of smokers worldwide have quit or cut down with the help of these products.
Acknowledging that distinction in legislation is the right thing to do, and government deserves some credit for moving in this direction.
Further work is needed
The clause-by-clause deliberation that will now begin is an opportunity to build on this progress and produce the best possible version of the bill. To do that, government and Parliament will need to continue working together in good faith, and several areas merit further attention.
The differentiation welcomed in the packaging provisions has not yet been extended consistently across the bill. In areas including restrictions on use in private settings, advertising, promotion, and sponsorship, non-combustible products remain subject to the same rules as cigarettes. Extending the logic of differentiation – now accepted in principle – into these provisions would make the bill more coherent and more firmly grounded in the evidence base.
It is good that the chairperson of the committee, Faith Muthambi, on Wednesday acknowledged this further improvement to be necessary.
Two detailed research papers published by the Free Market Foundation in late 2025 set out further areas for the committee’s consideration. The first, by Nicholas Woode-Smith, examines the bill’s procedural history and raises questions about whether the extensive public submissions were adequately reflected in the bill’s development. This included more than 21,000 written responses in the first round and nearly 8,000 further inputs in the 2022–2025 process, alongside over 1,100 oral presentations.
The clause-by-clause phase is the moment to ensure that substantive concerns raised by small retailers, farmers, consumers, and harm-reduction advocates are genuinely engaged with, rather than set aside.
The second paper, by Gary Moore, focuses on the bill’s delegation of regulatory powers to the Minister of Health and a hand-picked monitoring committee.
These provisions – which would allow the minister to define key terms, prescribe additional prohibited conduct, and set product composition standards through subordinate legislation – raise legitimate questions about parliamentary oversight and the rule of law. Tightening these delegations to include clear, contestable criteria and appropriate parliamentary scrutiny would strengthen the bill and reduce the risk of future constitutional challenge.
The committee should also give serious attention to the bill’s interaction with the illicit tobacco trade.
Overly restrictive measures that reduce the competitiveness of the formal, regulated market risk inadvertently driving consumers toward unregulated and illegal products: an outcome that serves neither public health nor the government’s own stated goals of disrupting illicit economic activity. Getting the balance right here is in everyone’s interest.
Taken together, the two FMF reports paint a picture of a bill that remains flawed even after the very welcome concession on differentiation.
If Parliament simply rubber-stamps the remaining defects, it will not protect public health but hand permanent market dominance to the very criminals that Minister Motsoaledi and President Ramaphosa profess to oppose, while eroding the democratic and constitutional foundations we claim to cherish. More work is needed.
Getting to the finish line
The desirability vote, and the differentiation concession that accompanied it, represent genuine progress.
The task now is to carry that momentum through the clause-by-clause process, and produce a bill that is evidence-based, constitutionally sound, and consistently coherent in its treatment of fundamentally different products.
South Africa has an opportunity to adopt tobacco and nicotine regulation that is proportionate, harm-reduction-oriented, and respectful of adult consumers’ informed choices. Parliament has shown it can work constructively on this bill.
The remaining deliberations are the chance to see collaboration through to a result that works for public health, for the rule of law, and for the millions of South Africans whose lives this legislation will affect.
[Image: Djordje Ristic from Pixabay]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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