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Marius Scheepers & Company Attorneys |
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Tobacco Products Control act, (1999) (updated
01/03)
[ASSENTED TO 23 JUNE
1993] [DATE OF COMMENCEMENT: 1
FEBRUARY 1994] (English text signed by
the State President) as amended by General Law Fifth
Amendment Act 157 of 1993 Tobacco Products Control
Amendment Act 12 of 1999 Regulations under this Act
NOTICE RELATING TO SMOKING
OF TOBACCO PRODUCTS IN PUBLIC PLACES NOTICE RELATING TO THE
MAXIMUM PERMISSIBLE YIELD OF TAR, NICOTINE AND OTHER CONSTITUENTS IN TOBACCO
PRODUCTS REGULATIONS RELATING TO
PROVISION FOR EXEMPTION FOR UNINTENDED CONSEQUENCES AND THE PHASING OUT OF
EXISTING SPONSORSHIP OR CONTRACTUAL OBLIGATIONS REGULATIONS RELATING TO
THE POINT OF SALE OF TOBACCO PRODUCTS REGULATIONS RELATING TO
THE LABELLING, ADVERTISING AND SALE OF TOBACCO PRODUCTS ACT
To prohibit or restrict
smoking in public places; to regulate the sale and advertising of tobacco
products in certain respects and to prescribe what is to be reflected on
packages; and to provide for matters connected therewith. Preamble
ACKNOWLEDGING that
tobacco use- is extremely
injurious to the health of both smokers and non-smokers and warrants, in the
public interest, a restrictive legislation; is a widely
accepted practice among adults, which makes it inappropriate to ban
completely; REALISING that the
association of smoking with social success, business advancement and sporting
prowess through the use of advertising and promotion may have the
particularly harmful effect of encouraging children and young people to take
up smoking; CONSIDERING that
the extent of the effects of smoking on health calls for strong action to
deter people from taking up smoking and to encourage existing smokers to give
up smoking; and RESOLVING to align
the health system with the democratic values of the Constitution and to
enhance and protect the fundamental rights of citizens by discouraging the
use, promotion and advertising of tobacco products in order to reduce the
incidence of tobacco-related illness and death; [Preamble inserted by s.
1 of Act 12 of 1999.] BE IT ENACTED by
the State President and the Parliament of the Republic of South Africa, as
follows:- 1 Definitions In this Act, unless
the context otherwise indicates- ‘advertisement’, in
relation to any tobacco product, means any drawn, still or moving picture,
sign, symbol, other visual image or message or audible message aimed at the
public and designed to promote or publicise a tobacco product or to promote
smoking behaviour and includes the use in any advertisement or promotion
aimed at the public of a tobacco product manufacturer’s company name where
the name or any part of the name is used as or is included in a tobacco
product trade mark, and ‘advertise’ has a corresponding meaning; [Definition of
‘advertisement’ substituted by s. 2 (a) of Act 12 of 1999.] ‘Constitution’ means
the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996); [Definition of
‘Constitution’ inserted by s. 2 (b) of Act 12 of 1999.] ‘constituent’, in
relation to any tobacco product, means nicotine, tar and any other
constituent of a tobacco product or of tobacco smoke which the Minister may
by notice in the Gazette declare to be a constituent for the purposes of this
Act; [Definition of
‘constituent’, previously definition of ‘hazardous constituent’, substituted
by s. 2 © of Act 12 of 1999.] ‘Director-General’
means the Director-General: Health; [Definition of
‘Director-General’ substituted by s. 2 (d) of Act 12 of 1999.] ‘employed’ or
‘employment’ means employed or employment as an employee as defined in
section 1 of the Basic Conditions of Employment Act, 1997 (Act 75 of 1997); [Definition of
‘employed’ or ‘employment’ inserted by s. 2 (e) of Act 12 of 1999.] ‘local authority’
means any institution or body established by or under any law with a view to
performing local government functions in respect of a particular area or
region; ‘Minister’ means the
Minister of Health; [Definition of
‘Minister’ substituted by s. 2 (f) of Act 12 of 1999.] ‘nicotine’ means
nicotine alkaloids; ‘officer’ means an
officer in the Department of National Health and Population Development
mentioned in section 5; [Definition of ‘officer’ amended by s. 9 (a) of Act 157
of 1993.] ‘organised
activity’- (a) means any activity or event- (i) which the public attend or participate in; (ii) which is organised for the purposes of entertainment, sport or
recreation or for educational or cultural purposes; and (iii) where a tobacco product, or brand name, trade
mark, logo or company name in relation to a tobacco product, is used in the
name of or portrayal of the activity or event; but (b) excludes any private activity or event arranged by a manufacturer,
importer, distributor or retailer of a tobacco product where only its
shareholders or its employees or their spouses or partners attend; [Definition of ‘organised
activity’ inserted by s. 2 (g) of Act 12 of 1999.] ‘package’ means any
packing, carton, wrapping or any other container in which tobacco products
are generally sold by retail; ‘prescribe’ means prescribe by regulation under this Act; ‘private dwelling’ means any part of- (a) any room or apartment of a building or structure which is occupied
as a residence; or (b) any building or structure or outdoor living area which is
accessory to, and used wholly or principally for, residential purposes; [Definition of
‘private dwelling’ inserted by s. 2 (h) of Act 12 of 1999.] ‘public place’ means any indoor or enclosed area which is open to the
public or any part of the public and includes a workplace and a public
conveyance; [Definition of
‘public place’ substituted by s. 2 (i) of Act 12 of 1999.] ‘smoke’ means to inhale, exhale, hold or otherwise have control over
an ignited tobacco product, weed or plant, and ‘smoked’ and ‘smoking’ have
corresponding meanings; [Definition of
‘smoke’ substituted by s. 2 (j) of Act 12 of 1999.] ‘tar’ means the anhydrous and nicotine-free condensate of the smoke of
a tobacco product; ‘this Act’ includes a regulation made under this Act; and ‘tobacco product’ means
any product manufactured from tobacco and intended for use by smoking,
inhalation, chewing, sniffing or sucking; [Definition of ‘tobacco
product’ substituted by s. 2 (k) of Act 12 of 1999.] ‘trade mark’
includes- (i) any mark whether registered or registrable for trade purposes or
any recognised version thereof that is likely to be taken as, or confused
with, that trade mark; (ii) certification trade mark or collective trade mark; and (iii) ‘trade mark’ as defined in section 1 of the
Trade Marks Act, 1993 (Act 194 of 1993); [Definition
of ‘trade mark’ added by s. 2 (l) of Act 12 of 1999.] ‘workplace’- (a) means any indoor or enclosed area in which employees perform the
duties of their employment; and (b) includes any corridor, lobby, stairwell, elevator, cafeteria,
washroom or other common area frequented by such employees during the course
of their employment; but (c) excludes any private dwelling, and any portion of an area
mentioned in paragraph (a) specifically designated by the employer as a smoking
area and which complies with the prescribed requirements. [Definition of
‘workplace’ added by s. 2 (m) of Act 12 of 1999.] 2 Control over smoking of tobacco products (1) (a) The smoking of tobacco products in any public place is
prohibited. (b) Notwithstanding the provisions of subsection
(1) (a), the Minister may by notice in the Gazette declare specified public
places permissible smoking areas, subject to any conditions that may be
specified in such notices. (c) Notwithstanding the fact that a private dwelling is excluded from
the definition of ‘workplace’, if a private dwelling is used for commercial
child care activities or for schooling the smoking of tobacco products in
such dwelling or on the terrain of such dwelling is prohibited, except in an
area of the private dwelling which is specifically designated by the
employer, owner, tenant or possessor as a smoking area and which complies
with the prescribed requirements. [Sub-s. (1)
substituted by s. 3 (a) of Act 12 of 1999.] (2) The Minister may at the request of any local authority, but
subject to subsection (3), grant any or all of his or her powers contemplated
in subsection (1) to such local authority. [Sub-s. (2)
substituted by s. 3 (b) of Act 12 of 1999.] (3) A power contemplated in subsection (1) shall not be granted to a
local authority under subsection (2) in respect of- (a) a public place owned by the State or which is occupied by officers
or employees in the employment of the State; or (b) such other public places or particular kinds of public places as
the Minister may determine by notice in the Gazette. (4) When a local authority issues regulations by virtue of subsection
(2), it shall do so by notice in the Official Gazette. (5) The Minister may issue regulations prescribing conditions to which
the exercise of a power by a local authority in terms of subsection (2) shall
be subject. (6) A local authority which has made regulations relating to the
control of smoking in public places in terms of this Act shall have the
power, duty and obligation to enforce the regulations in its area of
jurisdiction. [Sub-s. (6) added
by s. 3 © of Act 12 of 1999.] (7) A local authority which has not made regulations relating to the control
of smoking in public places in terms of this Act shall have the power, duty
and obligation to enforce any national regulations in connection therewith in
its area of jurisdiction. [Sub-s. (7) added
by s. 3 © of Act 12 of 1999.] 3 Advertising, sponsorship, promotion and required information in
respect of packages of tobacco products (1) No person shall- (a) advertise, including the use of tobacco trade marks, logos, brand
names or company names used on tobacco products; or (b) use tobacco trade marks, logos, brand names or company names used
on tobacco products for the purposes of advertising any organisation, service
activity or event. (2) No manufacturer, importer, distributor or retailer of tobacco
products shall- (a) organise or promote any organised activity that is to take place
in whole or in part in the Republic; (b) make any financial contribution to any organised activity that is
to take place, or is taking place, or has taken place in whole or in part in
the Republic; (c) make any financial contribution to any person in respect of- (i) the organisation or promotion of any organised activity in the
Republic by that person; (ii) the participation, by that person, in any organised activity that
is to take place, or is taking place in whole or in part, in the Republic. (3) A retailer of tobacco products may post in accordance with the
regulations passed in relation to this Act, signs at the point of sale that
indicate the availability of tobacco products and their price. (4) No person shall sell or import for subsequent sale any prescribed
tobacco product, unless- (a) such product is in a package; (b) the package in which the tobacco product is sold bears the
prescribed warning concerning the health hazards incidental to the smoking of
tobacco products; and (c) the quantities of the constituents present in the tobacco product
concerned are stated on the package. (5) Notwithstanding the provisions of section 3, the Minister may, by regulations,
provide for exemptions for unintended consequences or the phasing out of
existing sponsorship or contractual obligations. [S. 3 substituted by s.
4 of Act 12 of 1999.] 3A Maximum yields of tar and other constituents in a tobacco
product The
Minister may, by notice in the Gazette, declare the maximum permissible
levels of tar, nicotine and other constituents which tobacco products may
contain and the maximum yield of any such substance that may be obtained
therefrom. [S. 3A inserted by s. 5
of Act 12 of 1999.] 4 Prohibition of sale of tobacco products to persons under age of
16 years (1) No person shall sell or supply any tobacco product to any person
under the age of 16 years, whether for his personal use or not. (2) and (3) ...... [Sub-ss. (2) and (3)
deleted by s. 4 of Act 12 of 1999.] 4A Free distribution and reward prohibited (1) No manufacturer, distributor, importer or retailer of a tobacco
product shall for free, or at a reduced price, other than a normal trade
discount- (a) distribute any tobacco product; or (b) supply any tobacco product to any person for subsequent
distribution. (2) No person shall offer any gift, cash rebate or right to
participate in any contest, lottery or game, to any person in consideration
of the purchase of a tobacco product, or the furnishing of evidence of such a
purchase. [S. 4A inserted by s. 7
of Act 12 of 1999.] 5 Restrictions on use of vending-machines (1) The sale of tobacco products from vending machines shall be restricted
to places in which purchases from such machines are inaccessible to persons
under the age of sixteen years. [Sub-s. (1)
substituted by s. 8 (a) of Act 12 of 1999.] (2) It shall be the responsibility of any person during such time as
he or she is responsible for or has control of the premises in which any
vending machine is kept to ensure that no person under the age of sixteen
years makes use of any such machine. [Sub-s. (2)
substituted by s. 8 (b) of Act 12 of 1999.] (3) The Director-General may in writing direct the owner of the
vending-machine in question or the person in control thereof- (a) to take such precautionary measures as are specified in the
direction to prevent the vending-machine being used by persons under the age
of 16 years; or (b) to remove the vending-machine from the premises within the period
specified in the direction. (4) ...... [Sub-s. (4) deleted by
s. 8 © of Act 12 of 1999.] 6 Regulations (1) The Minister may make regulations regarding- (a) the manner and form in which information contemplated in section 3
is to be reflected on the package of a tobacco product or in which it is to
appear in any advertisement of such product; [Para. (a) amended
by s. 9 (b) of Act 157 of 1993.] (b) the manner or method of determining the quantities of hazardous
constituents in tobacco products; (c) the properties of a tobacco product, the claims in respect of
such product and the representations in respect of the use thereof that may
not appear in any advertisement; (d) the returns, reports and other information to be furnished to the
Director-General by manufacturers and importers of tobacco products; (e) any other matter required or permitted to be prescribed in terms
of a provision of this Act to achieve the objects of this Act. (2) Regulations made under subsection (1) (b) may prescribe for the
determination of the quantities of hazardous constituents in tobacco products
any manner or method set out in a publication which in the opinion of the
Minister is generally recognized as authoritative. (3) The Minister shall, not less than three months before issuing any
regulation under this Act, cause a draft of the regulation to be published in
the Gazette, together with a notice declaring his intention to issue such a
regulation and inviting interested persons to furnish him with any comments
thereon or representations in connection therewith within a specified period. (4) The provisions of subsection (3) shall not apply in respect of- (a) a regulation which, after the provisions of the said subsection
have been complied with, has been amended by the Minister in consequence of
comments or representations received by him in pursuance of the notice
published in terms of the said subsection; (b) any regulation in respect of which the Minister is of the opinion
that it is in the public interest that it be issued without delay. 7 Offences and penalties (1) Any person who contravenes or fails to comply with any notice
issued in terms of section 2 (1) shall be guilty of an offence and liable on
conviction to a fine not exceeding R200 or to such penalties as may be
determined. (2) Any person who contravenes or fails to comply with the provisions
of section 4 (1) or 5 shall be guilty of an offence and liable on conviction
to a fine not exceeding R10 000 or to such imprisonment as may be determined. (3) Any person who contravenes or fails to comply with the provisions
of section 3 or 4A or any notice issued in terms of section 3A shall be
guilty of an offence and liable on
conviction to a fine not exceeding R200 000 or to such imprisonment as may be
determined. [S. 7 amended by s. 9 of
Act 157 of 1993 and substituted by s. 9 of Act 12 of 1999.] 8 Short title and commencement (1) This Act shall be called the Tobacco Products Control Act, 1993,
and shall come into operation on a date fixed by the State President by
proclamation in the Gazette. (2) Different dates may under subsection (1) be fixed in respect of
different provisions of this Act. TOBACCO PRODUCTS CONTROL
AMENDMENT ACT 12 OF 1999 [ASSENTED TO 14 APRIL
1999] [DATE OF COMMENCEMENT: 1
OCTOBER 2000] (English text signed by
the President) ACT
To amend the Tobacco
Products Control Act, 1993, so as to amend and insert certain definitions; to
provide for the prohibition of advertising and promotion of tobacco products;
to provide further, for the prohibition of advertising and promotion of
tobacco products in relation to sponsored events; to prohibit the free
distribution of tobacco products and the receipt of gifts or cash prizes in
contests, lotteries or games to or by the purchaser of a tobacco product in
consideration of such purchase; to provide for the prescription of maximum
yields of tar, nicotine and other constituents in tobacco products; to
increase fines; and to provide for matters connected therewith. 1 Inserts the preamble in the Tobacco Products Control Act 83 of
1993. 2 Amends section 1 of the Tobacco Products Control Act 83 of
1993, as follows: paragraph (a) substitutes the definition of ‘advertisement’;
paragraph (b) inserts the definition of ‘Constitution’; paragraph (c)
substitutes the definition of ‘constituent’ for the definition of ‘hazardous
constituent’; paragraph (d) substitutes the definition of ‘Director-General’;
paragraph (e) inserts the definitions of ‘employed’ or ‘employment’;
paragraph (f) substitutes the definition of ‘Minister’; paragraph (g) inserts
the definition of ‘organised activity’; paragraph (h) inserts the definition
of ‘private dwelling’; paragraph (i) substitutes the definition of ‘public
place’; paragraph (j) substitutes the definition of ‘smoke’; paragraph (k)
substitutes the definition of ‘tobacco product’; paragraph (l) inserts the
definition of ‘trade mark’; and paragraph (m) inserts the definition of
‘workplace’. 3 Amends section 2 of the Tobacco Products Control Act 83 of
1993, as follows: paragraph (a) substitutes subsection (1); paragraph (b)
substitutes subsection (2); and paragraph (c) adds subsections (6) and (7). 4 Substitutes section 3 of the Tobacco Products Control Act 83 of
1993. 5 Inserts section 3A in the Tobacco Products Control Act 83 of
1993. 6 Amends section 4 of the Tobacco Products Control Act 83 of 1993
by deleting subsections (2) and (3). 7 Inserts section 4A in the Tobacco Products Control Act 83 of
1993. 8 Amends section 5 of the Tobacco Products Control Act 83 of
1993, as follows: paragraph (a) substitutes subsection (1); paragraph (b)
substitutes subsection (2); and paragraph (c) deletes subsection (4). 9 Substitutes section 7 of the Tobacco Products Control Act 83 of
1993. 10 Extension and application of Act 83 of 1993 The Tobacco Products
Control Act, 1993, and all amendments thereof shall apply throughout the
Republic. 11 Short title and commencement (1) This Act shall be called the Tobacco Products Control Amendment
Act, 1999, and shall come into operation on a date fixed by the President by
proclamation in the Gazette. (2) Different dates may be fixed in respect of different provisions of
this Act.
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