The South African government appears to be slowly recognising that its approach to tobacco regulation has failed to adequately account for the realities of the local market.
Unfortunately, while some policymakers are beginning to acknowledge the extent of the problem, the country’s proposed tobacco legislation remains rooted in assumptions that have long been challenged by researchers, industry stakeholders, and concerned citizens.
In his 2026 Medium-Term Budget Policy Statement (MTBPS), Finance Minister Enoch Godongwana identified illicit tobacco as a major concern for SARS, outlining the government’s efforts to combat the illicit economy through improved enforcement and modernisation.
Meanwhile, the latest Ipsos research reveals that 75.4% of surveyed cigarette-selling outlets offer products below the minimum collectable tax threshold.
These findings should serve as a warning to Parliament, which is currently considering the Tobacco Products and Electronic Delivery Systems Control Bill.
It is difficult to justify imposing further restrictions on legitimate businesses when government has already demonstrated its inability to effectively regulate a substantial portion of the existing market.
A Bill built on outdated assumptions
The Tobacco Bill has been plagued by controversy since its initial publication in 2018. Its proponents have insisted that the legislation is necessary to reduce smoking and protect public health, but have consistently failed to adequately address concerns surrounding its economic consequences, enforceability, and implications for consumer freedom.
In my paper, South Africa’s Tobacco Bill: A Case Study in Anti-Democratic Lawmaking, I examined the deeply flawed legislative process that has accompanied this Bill.
One of the most concerning findings was the inadequacy of the Socio-Economic Impact Assessment (SEIA), which was meant to evaluate the potential consequences of the proposed legislation.
The Bill underwent substantial changes between 2018 and 2022, introducing new provisions and expanding the powers granted to the Minister of Health. Yet the accompanying impact assessment continued to rely on earlier assumptions and failed to adequately examine the revised legislation.
Crucially, it lacked a comprehensive cost-benefit analysis.
This is not merely a bureaucratic technicality. The purpose of an impact assessment is to ensure that government understands the potential consequences of its interventions before imposing them on South Africans.
Yet the Department of Health continued pursuing the Bill without adequately accounting for the enormous changes to South Africa’s tobacco market, particularly following the disastrous 2020 prohibition on cigarette sales.
The government had already witnessed how an outright prohibition could drive consumers towards illicit suppliers without meaningfully eliminating demand. Rather than properly incorporating these lessons into its regulatory approach, the Department continued advancing legislation that threatened to make compliance even more burdensome.
Punishing the law-abiding
The Tobacco Bill proposes an extensive array of restrictions, including plain packaging, prohibitions on product displays, advertising restrictions, and limitations on how tobacco products may be sold.
Whether one supports these measures in principle or not, there remains the unavoidable question of how they will function in a market where illicit cigarettes are already so widely available.
Legitimate retailers will be expected to comply with increasingly complicated restrictions, while illicit traders who already disregard existing laws may simply ignore the new ones.
Manufacturers that comply with packaging requirements and other regulations will incur additional costs, while their non-compliant competitors continue operating without bearing the same burdens.
This risks creating an absurd situation where government makes it increasingly difficult for legitimate businesses to operate, without meaningfully affecting those businesses that already operate outside the law.
It is not enough to simply pass legislation and assume that the desired outcomes will follow.
South Africa has a long history of impressive-sounding legislation that fails to achieve its objectives because policymakers neglect to consider implementation, enforcement capacity, and unintended consequences.
The Tobacco Bill risks becoming another example.
Public health is undoubtedly an important consideration. But it cannot be treated as an excuse to ignore economic realities, consumer choice, or the rule of law. A regulation that primarily burdens compliant businesses while failing to address widespread non-compliance deserves serious reconsideration.
Parliament is finally beginning to listen
Fortunately, there have been some encouraging developments.
In June 2026, the Portfolio Committee on Health voted to proceed with the Tobacco Bill, but also acknowledged that substantial changes were necessary.
Committee chairperson Faith Muthambi recognised that combustible cigarettes and non-combustible alternatives do not carry identical risks and should not necessarily be subjected to identical regulations.
The committee also acknowledged the extraordinary scale of South Africa’s illicit cigarette market and the difficulties this creates for tobacco control.
In August 2026, the committee began clause-by-clause deliberations, explicitly recognising the importance of distinguishing different products and addressing illicit trade.
These developments are welcome. They indicate that at least some of the concerns raised by critics over the years are finally receiving serious consideration.
But recognition is not reform.
The fact that Parliament has only recently begun seriously confronting these issues raises an uncomfortable question about why they were neglected for so long.
In March 2026, committee members were still expressing concern about the absence of a socioeconomic impact assessment from the Department of Health’s presentation. This was years after the Bill had first been introduced to Parliament.
The Department and Parliament have had ample opportunity to conduct the necessary research and consider the consequences of their proposed interventions.
Instead, much of the process has been characterised by procedural shortcomings, contested consultations, and an apparent determination to push the Bill through regardless of the concerns raised.
Public participation is not a box-ticking exercise. It exists to ensure that legislation is improved through genuine engagement with the South Africans who will be affected by it.
Simply recording thousands of submissions does not demonstrate that these submissions have meaningfully influenced the final legislation.
An opportunity to correct course
Parliament now has an opportunity to avoid repeating the mistakes that have characterised South Africa’s tobacco policy.
Ideally, the current Bill should be scrapped and the legislative process started anew, with a comprehensive socioeconomic impact assessment that properly considers the illicit market, economic consequences, consumer freedoms, and the practical limitations of enforcement.
A complete reworking of the legislation would allow policymakers to develop a framework suited to South Africa’s circumstances, rather than attempting to salvage a Bill built upon outdated assumptions.
If Parliament is unwilling to take this step, substantial amendments must be the minimum acceptable alternative.
These amendments should distinguish combustible tobacco from less harmful alternatives, ensure that regulations are proportionate and practically enforceable, limit excessive ministerial discretion, and properly account for the economic consequences of imposing additional burdens on legitimate businesses.
Most importantly, Parliament must recognise that public health, economic prosperity, and individual liberty are not mutually exclusive objectives. A sensible regulatory framework should seek to balance these interests rather than treating any one of them as justification for disregarding the others.
The latest Ipsos findings and Treasury’s acknowledgement of the illicit tobacco crisis reinforce the importance of reconsidering the government’s approach.
South Africa does not need another law that looks impressive on paper while proving ineffective in practice. It needs legislation that respects consumer choice, protects legitimate enterprise, and recognises the realities of the market it seeks to regulate.
Parliament has finally begun acknowledging the problem. Now it must demonstrate that it is willing to do more than merely pay lip service to reform.
[Image: by ShadowInspiration]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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