Saturday, 12 January 2013

South Africa hiding its collapsed health system behind ridiculous tobacco regulations

For the past number of years South Africa has been ranked as the Rape Capital of the World, and it is recognised as one of the most dangerous countries on earth with more than forty murders being committed each day, it is crime and corruption infested also being ranked the up-and-coming Drug Capital of the world. South Africa's road deaths are among the highest in the world, mostly due to alcohol abuse. Alcoholism is endemic in South Africa.

South Africa has lost the battle against TB, it is infested with HIV and we've lost that battle too.

YET, the government is keeping everyone focussed on tobacco smoking as a scape-gout for their incompetence at all other levels.

Now while I am not promoting tobacco smoking, the anti-tobacco drive in South Africa is ridiculous to put it mildly. Woman and child abuse is out of control in South Africa, caused mostly by alcohol, followed by drugs, yet the government is trying to impress everyone with their anti-tobacco nonsense.

When tobacco advertising was banned in South Africa even the public supported it, yet now that the Minister of Transport wants to ban alcohol / liquor advertising the public is opposed it it, even saying that it would not stop people from buying and drinking alcohol. The very same public who supported the banning of tobacco advertising on the delusional premise that it would stop people from smoking.

Men do not assault women and children under the "influence" of tobacco, but they certainly do so under the influence of alcohol. People do not drive recklessly and kill people in vehicle accidents under the "influence" of tobacco, but they certainly do so under the influence of alcohol, yet all the governments of the world do is to focus on tobacco as an eye-blind to keep people's attention away from much more serious and much more urgent problems.

Anti-tobacco fanatics are a pest, a disease to this world who try blaming everything on smoking in their childish naive ignorance in their effort to hide the more dangerous, more serious issues of this world.

Most politicians drink and too many of them are alcoholics and drug addicts. Even most doctors drink and we all know that medical students are among the biggest consumers of alcohol of all university groups.

We never hear anti-tobacco fanatics say ANYTHING about diesel and other MUCH MORE DANGEROUS toxins, including ALCOHOL, WHY IS THAT?

South African President Thabo Mbeki refuses to sack 'alcoholic' health minister

South African President Thabo Mbeki has shrugged off calls to sack his health minister - despite reports she is an alcoholic and still drinking despite having a liver transplant.

Sunday Times newspaper said the minister had alcoholic liver cirrhosis from years of excessive drinking when she had her transplant, and used her position to secure a new liver whilst hiding her alcoholism from the public.


Tide turns against SA tobacco firms

THERE is speculation that the rule of plain tobacco packaging could come to South Africa, following the Australian government's decision to implement a law that requires tobacco companies to sell their products in plain packages.

Australia's Tobacco Plain Packaging Act 2011, which came into effect on December 1 2012, requires all cigarette brands to be sold in identical olive green packs featuring graphic images of mouth ulcers and other consequences of smoking.

These health warnings must, in  fact, cover 75% of the front of the pack, and 90% of the back. The brand name (without the logo) and the variant (like menthol) may appear on the pack, but only in very small print.

Legal challenge

Two tobacco companies, JT International and British American Tobacco [JSE:BTI] (BAT), challenged the legislation. They argued that it was an unlawful expropriation of intellectual property, because the constitution says that any acquisition of property must be “on just terms”.

On August 15 2012, the Australian High Court held that the legislation was legal. The majority, led by Chief Justice Robert French, ruled that the law only controls the way tobacco is marketed and does not involve an acquisition.

The court said this in its press release: "Although the act regulated the plaintiffs' intellectual property rights and imposed controls on the packaging and presentation of tobacco products, it did not confer a proprietary benefit or interest on the commonwealth.

"The act was valid, as it did not acquire property. It therefore did not engage section 51(xxxi) of the constitution."

It did not take long for the legislation to become an international issue.

Honduras, Nicaragua, Zimbabwe, the Dominican Republic and Ukraine made it known at the World Trade Organisation (WTO) that they felt that the legislation breaches Australia's obligations under the Trade-Related Aspects of Intellectual Property Rights (Trips) Agreement, and the Technical Barriers to Trade (TBT) Agreement.

They argue that the Australian law restricts the essential function of a trademark, which is to denote the origin of products.

Australia, on the other hand, argues that its law is a sound and well-considered measure designed to achieve a legitimate objective, namely the protection of public health.

Australia argues that its legislation does not undermine the protection afforded under the Trips Agreement, and that it is origin-neutral, non-discriminatory and applies to all tobacco products.

It also argues that the law is in line with the World Health Organisation's Framework Convention on Tobacco Control.

Proposed cigarette packaging by the World Health Organisation. The body is urging governments to unite against "big tobacco", which it says uses dirty tricks, bullying and immorality in its quest to keep people smoking. (AFP)

Australia rejected Honduras' first request for a WTO panel to examine the legislation on November 19 2012. As a result, the Dominican Republic filed a request for the establishment of a panel to be considered by the Dispute Settlement Board at its December 2012 meeting.

Norway, New Zealand and Uruguay, in the meantime, gave notice that they support the Australian legislation, being an exercise of the sovereign right of WTO members to protect public health.

SA, New Zealand, India want to follow suit

New Zealand has also indicated that it will follow Australia's lead and pass plain packaging legislation.

An Indian MP has announced that she will be putting forward a private member's bill for plain packaging legislation in India, and the South African government has made it clear that it wishes to introduce similar legislation.

The tobacco industry in South Africa has already given a very strong indication that it will challenge any such legislation in the Constitutional Court.

The argument in South Africa is likely to be similar to what it was in Australia. The tobacco companies are likely to argue that a law requiring them to use unbranded packs contravenes the constitution, which says that no one should be deprived of property and that in the case of an expropriation, compensation must be paid.

In support of this, they will argue that - because such legislation will prevent them from using their trademarks, and because the law says that a registered trademark that is not used for five years is vulnerable to cancellation - the legislation will be tantamount to expropriation.

They may well argue that they will be entitled to significant compensation, because trademarks are very valuable assets.

The government, on the other hand, may argue that legislation of this nature simply restricts the way in which tobacco companies can use their trademarks, and does not deprive them of ownership. Its stance will obviously be fortified by the Australian decision.

The government may also argue that, even if the legislation does constitute expropriation, its purpose must be considered and as this is the promotion of public health, compensation should be modest.

Constitutional Court ruling backs government

The South African case will be strengthened be further by the fact that a few years back the Constitutional Court ruled that the constitutional right of freedom of expression trumped the right of a company to control the use of its trademark.

Surely, the government will argue, it must follow that health rights must supersede intellectual property rights.

It will be fortified by the dismissal of the Supreme Court of Appeal in a case filed by BAT, where the company argued the legislation that prohibits tobacco advertising in South Africa does not extend to one-on-one communications between a tobacco company and a consenting adult customer, as this would be contrary to the right of freedom of expression.

The court ruled that the ban on tobacco advertising does indeed extend to such one-on-one communications.

It pointed out the constitution makes it clear that any constitutional right can be limited to the extent that the limitation is reasonable and justifiable, taking into account relevant factors. These include the nature of the right, and the nature and extent of the limitation.

The judge said: "In my view, this is a classic example of a case in which matters of fact and policy are intertwined. There are powerful public health considerations for a ban on advertising and promotion of tobacco products.

"South Africa also has international law obligations and this has been the practice in many other open and democratic societies. They have accepted the link between advertising and consumption as incontrovertible and have imposed restrictions on the advertising and promotion of tobacco products."

In countries such as Australia and South Africa, the tide has certainly turned against tobacco companies; whether it has in the rest of the world remains to be seen.

 - Fin24

*Rachel Sikwane  is a senior associate at Edward Nathan Sonnenbergs. Views expressed are her own.


SA signs new WHO treaty against tobacco smuggling

South Africa yesterday became the first country to sign a new international treaty aimed at combating tobacco smuggling.

Minister of Health Dr Aaron Motsoaledi signed the Protocol to Eliminate Illicit Trade in Tobacco Productsat a ceremony held at the WHO headquarters in Geneva on Thursday. Eleven other countries including China, France, Panama, Turkey and Uruguay have also signed the treaty, which is now open for signature by other countries.

The aim of the treaty is to reduce tobacco smuggling worldwide.  It promotes measures that governments can adopt to eliminate smuggling and encourages international co-operation between countries in identifying tobacco smuggling routes and trends, and in apprehending smugglers.

Big business 

Tobacco smuggling is big business for both the tobacco manufacturers and criminal organisations.  Once-secret industry documents reveal that the major tobacco companies have actively participated in smuggling worldwide. They have knowingly supplied tobacco products to criminals involved in smuggling.

Stopping smugglers being able to obtain tobacco products by controlling the supply chain is an important aspect of the treaty.  The treaty recommends that the supply chain be controlled through licencing of manufacturers; requiring them to verify thebona fides of their customers; tracking the movement of tobacco products across borders as well as tracing the origins of seized goods; better border controls and stronger penalties for smuggling.

The National Council Against Smoking (NCAS) commends the Minister for being the first to sign the treaty. Reducing the illicit trade in tobacco is an important public health measure”, says Dr Yussuf Saloojee, executive director of the NCAS.  “Smuggling makes cigarettes cheaper and so increases sales. It encourages adults to keep smoking instead of quitting after tax increases, and makes tobacco affordable to youth.  Higher tobacco sales in turn mean more sickness and death,” he added.

“The level of cigarette smuggling in South Africa is highly over-estimated by the tobacco industry, as this creates pressure on the Treasury to keep excise taxes low. Nonetheless we do not need to combat smuggling and the way to do so is not by lowering taxes but by adopting the measures proposed by the Protocol”, Saloojee says.

WHO Director-General Dr Margaret Chan said at the signing ceremony. “The protocol gives the world a unique legal instrument for countering and eventually eliminating a sophisticated international criminal activity that costs a lot, especially for health.”

The new treaty is the first protocol to the WHO Framework Convention on Tobacco Control. The Protocol will enter into force 90 days after the 40th government has ratified it.

The Protocol will help to protect people across the globe from the health risks of tobacco. In SA 44 000 are killed every year due to tobacco that is 3 times as many as are killed in road accidents.

(Press release, January 2013)

Read more:
Global deal against smuggling


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