Tobacco legislation pertaining to workplaces

Tobacco legislation pertaining to workplaces

The Tobacco Products Control Act, Act 83 of 1993.pdf as amended by Act 12 of 1999, Act 23 of 2007, and Act 63 of 2008

Definitions

'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.] 

'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 conveyance' includes transporting people by means of any commercial or chartered aircraft, ship, boat, train, bus, mini-bus or taxi.

[Definition of 'public conveyance' inserted by s. 1 (f) of Act 23 of 2007]

'public place' means any indoor, enclosed or partially enclosed area which is open to the public, and includes a workplace and a public conveyance;"; 

[Definition of 'public conveyance' inserted by s. 1 (g) of Act 23 of 2007]

'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.] 

'tobacco product' means a product containing tobacco that is intended for human consumption, and includes, but is not limited to, any device, pipe, water pipe, papers, tubes, filters, portion pouches or similar objects manufactured for use in the consumption of tobacco.

[Definition of 'tobacco product'inserted by s. 1 (h) of Act 23 of 2007]

'workplace'- 

(a) means any indoor, enclosed or partially enclosed area in which employees perform the duties of their employment; and

[Definition of 'public conveyance' inserted by s. 1 (i) of Act 23 of 2007]

(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.] 

"Control over smoking of tobacco products"

2. (1) (a) No person may smoke any tobacco product in—

(i) a public place;

(ii) any area within a prescribed distance from a window of, ventilation inlet of, doorway to or entrance into a public place;

(iii) any motor vehicle when a child under the age of 12 years is present in that vehicle; or

(iv) any place contemplated in subsection (3).

(b) Notwithstanding paragraph (a), the Minister may permit smoking in the prescribed portion of a public place, subject to any prescribed condition.

(c) Notwithstanding the fact that a private dwelling is excluded from the definition of 'workplace', no person may smoke any tobacco product in a private dwelling if that private dwelling is used for any commercial childcare activity, or for schooling or tutoring.

(2) The owner of or person in control of a place or an area contemplated in subsection (\)(a), or an employer in respect of a workplace, shall ensure that no person smokes in that place or area.

(3) The Minister may prohibit the smoking of any tobacco product in any prescribed outdoor public place, or such portion of an outdoor public place as may be prescribed, where persons are likely to congregate within close proximity of one another or where smoking may pose a fire or other hazard.

(4) The owner of or person in control of a place or area contemplated in subsection {l)(a), or employer in respect of a workplace, shall display the prescribed signs and shall make the prescribed public announcements in order to inform any person who enters or who is in or on such place or area of any prohibition on smoking.

(5) An employer must ensure that—

(a) employees may object to smoking in the workplace in contravention of this Act without retaliation of any kind;

(b) employees who do not want to be exposed to tobacco smoke in the workplace are not so exposed;

(c) it is not a condition of employment, expressly or implied, that any employee is required to work in any portion of the workplace where smoking is permitted; and 

(d) employees are not required to sign any indemnity for working in any portion of the workplace where smoking is permitted.

(6) The owner of or person in control of a place or area contemplated in subsection (l)(a), or employer in respect of a workplace, shall ensure that no person under the age of 18 years is present in any portion of the workplace where smoking is permitted or in the area within a public place contemplated in subsection (1)(b) in or on which smoking is permitted.

(7) Sections 80 to 89 of the National Health Act, 2003 (Act No. 61 of 2003), apply with the necessary changes to this section. 

["Control over smoking of tobacco products" amended by s. 2 of Act 23 of 2007]

"Offences and penalties"

7. (1) Any person who contravenes or fails to comply with section 2(2),(4) or (6), or fails to comply with any condition contemplated in section 2(1)(b), shall be guilty of an offence and liable on conviction to a fine not exceeding R50 000.

(2) Any person who contravenes or fails to comply with section 2(5), 3(8), (9)(a) or (b) or (10), 4(1), (2), (3), (4)(a) or (b) or (5) or 5, or contravenes or fails to comply with any regulation made in terms of this Act, shall be guilty of an offence and liable on conviction to a fine not exceeding R100 000. 

(3) Any person who contravenes or fails to comply with section 3(1), (2), (3), (6), (7)(a) or (b), 3A, or 4A shall be guilty of an offence and liable on conviction to a fine not exceeding R1 000 000.

(4) Any person who contravenes or fails to comply with section 2( 1) shall be guilty of an offence and liable on conviction to a fine not exceeding R500.". 

"Offences and penalties" amended by s. 6 of Act 23 of 2007 and 63 of 2008]

NOTICE RELATING TO THE MAXIMUM PERMISSIBLE YIELD OF TAR, NICOTINE AND OTHER CONSTITUENTS IN TOBACCO PRODUCTS.  

No. R. 974         29 September 2000 

NOTICE RELATING TO THE MAXIMUM PERMISSIBLE YIELD OF TAR, NICOTINE AND OTHER CONSTITUENTS IN TOBACCO PRODUCTS. 

The Minister of Health has, in terms of section 3A of the Tobacco Products Control Act, 1993 (Act No, 83 of 1993), as amended, declared the amount of tar and nicotine in tobacco products, as set out in the Schedule.

SCHEDULE

1. The tar yield of cigarettes marketed in the Republic of South Africa must not be greater than 15 mg per cigarette, and the nicotine yield not greater than  1,5 mg per cigarette, as from 1 December 2001.  

2.  The tar yield of cigarettes marketed in the Republic of South Africa must not be greater than 12 mg per cigarette, and the nicotine yield not greater than 1,2 mg per cigarette, as from 1 June 2006. 

3.  The amount of tar and nicotine in the smoke of a cigarette is determined according to Annexure 3 of the Regulations Relating to the Labeling, Advertising and Sale of Tobacco Products (published under Government Notice No. 2063 of 2 December 1994). 

ME TSHABALALA-MSIMANG 

MINISTER OF HEALTH

p.6 No. 21610  GOVERNMENT GAZETTE, 29 SEPTEMBER 2000 

NOTICE RELATING TO SMOKING OF TOBACCO PRODUCTS IN PUBLIC PLACES

No. R. 975         29 September 2000 

NOTICE RELATING TO SMOKING OF TOBACCO PRODUCTS IN PUBLIC PLACES

The Minister of Health has, in terms of section 2 of the Tobacco Products Control Act, 1993 (Act No. 83 of 1993), as amended, declared the public places specified in the Schedule as permissible smoking areas, subject to the conditions also specified in the Schedule.

SCHEDULE

Definitions

1.  In this Notice, “the Act” means the Tobacco Products Control Amendment Act, 1999 (Act No. 12 of 1999), and, unless the context indicates otherwise -

“pub, “bar" or “tavern” means a public place where the primary business of the place is to sell alcoholic beverages to the general public, for consumption on the premises; 

“restaurant” means a public place where the primary business of the place is the sale of prepared food to the general public, for consumption on or off the premises; and 

“smoking establishment” means an establishment where the primary business is to sell tobacco products to the general public for consumption on or off the premises, and to provide for related business activities. 

Smoking areas

2.  Smoking of tobacco products is permitted in the following public places: 

(a)  Smoking establishments;

(b)  bars, pubs, taverns or any other public place where the primary business is the sale of alcohol beverages, subject to clause 3; 

(c)  night clubs, casinos or any other public place where the primary business is the provision of entertainment, subject to clause 3; 

(d)  restaurants, subject to clause 3; 

(e)  hotels, guest houses, bed and breakfast places, game lodges and other places where accommodation is offered for sale, subject to clause 3; 

(f)  passenger ships registered in the Republic, subject to clause 4;

(g)  passenger trains operating in the Republic, subject to clause 5;

(h)  work places, subject to clauses 3, 6, 7; and 8

(i)  airports, subject to clause 3.

3.  An employer, owner, licensee, lessee or person in control of a public place may designate a portion of a public place as a smoking area, provided that- 

(a)  the designated smoking area does not exceed 25% of the total floor area of the public place;

(b)  the designated smoking area is separated from the rest of the public place by a solid partition and an entrance door on which the sign “SMOKING AREA” is displayed, written in black letters, at least 2cm in height and 1,5 cm in breadth, on a white background; 

(c)  the ventilation of the designated smoking area is such that air from the smoking area is directly exhausted to the outside and is not re-circulated to any other area within the public place; 

(d)  the message: “SMOKING OF TOBACCO PRODUCTS IS HARMFUL TO YOUR HEALTH AND TO THE HEALTH OF CHILDREN, PREGNANT OR BREASTFEEDING WOMEN AND NON-SMOKERS. FOR HELP TO QUIT PHONE (011) 7203145” is displayed at the entrance to the designated smoking area, written in black letters, at least 2cm in height and 1,5 cm in breadth, on a white background; and 

(e)  notices and signs indicating areas where smoking is permitted and where it is not permitted must be permanently displayed and signs indicating that smoking is not permitted must carry the warning: “ANY PERSON WHO FAILS TO COMPLY WITH THIS NOTICE SHALL BE PROSECUTED AND MAY BE LIABLE TO A FINE”; 

4. The operator of any passenger ship that is registered in the Republic may allocate not more than 25% of the total accommodation as designated smoking areas.

5.  The operator of any passenger train operating in the Republic with the total number of carriages exceeding 10 (ten) may allocate not more that 25% of the entire train as a designated smoking area. In the case where the number of carriages does not exceed 10 (ten), only 1 (one) carriage may be designated as a smoking area. 

6. An employer, owner, licensee, lessee or person in control of a public place must ensure that no person smokes anywhere other than in the designated smoking area in that public place. 

7. An employer must ensure that-

(a)  employees who do not want to be exposed to tobacco smoke in the workplace are protected from tobacco smoke in that workplace; and 

(b)  employees may object to tobacco smoke in the workplace without retaliation of any kind, 

8. Employers must have a written policy on smoking in the workplace, and the policy must be applied within three months from the date of coming into operation of the Tobacco Products Control Amendment Act, 1999 (Act No. 12 of 1999). 

9. Any employer, owner, licensee, lessee or person in control of any public place or part of a public place may totally prohibit smoking in that place.

10. This Notice comes into operation three months after the date on which the Act comes into operation. 

11. Where structural changes are necessary in order to comply with this Notice, written applications requesting exemption for periods of up to six months will be considered. Applications must set out clear details of the nature and extent of the proposed structural changes, as well as an indication of the exact time envisaged to make the structural changes. 

Applications must be addressed to: The Director-General: Health, Private Bag X828, PRETORIA 0001  

ME TSHABALALA-MSIMANG

MINISTER OF HEALTH

STAATSKOERANT, 29 SEPTEMBER 2000 No. 21610 9 

REGULATIONS RELATING TO THE POINT OF SALE OF TOBACCO PRODUCTS

No. R. 976         29 September 2000 

REGULATIONS RELATING TO THE POINT OF SALE OF TOBACCO PRODUCTS. 

The Minister of Health has, in terms of sections 3 and 6 (1) of the Tobacco Products  Control Act, 1993 (Act No. 83 of 1993), as amended, made the regulations in the Schedule. 

SCHEDULE 

Definitions

1.  In this Notice, “the Act” means the Tobacco Products Control Amendment Act, 1999 (Act No. 12 of 1999).

Signs at point of sale

2.  A retailer of tobacco products may indicate the availability of tobacco products and their price only by means of signs at the point of sale that- 

(a) do not exceed one square metre in size; and 

(b) are placed within one metre of the point of sale. 

3.  All signs that indicate the availability of tobacco products and their price must contain the following messages in letters that are at least 2cm in height and 1,5 cm in width: 

(a) “WE CANNOT, BY LAW, SELL TOBACCO PRODUCTS TO ANYONE UNDER THE AGE OF 16 YEARS”; this message must appear at the top of the sign and across its full width; and 

(b)  a health message as contained in Annexure A of these regulations [at end of doc]. 

Commencement of the regulations 

4. These regulations come into operation three months after the date on which the Act comes into operation. 

ME TSHABALALA-MSIMANG

MINISTER OF HEALTH  

STAATSKOERANT, 29 SEPTEMBER 2000 No.2161O 11 

REGULATIONS RELATING TO THE PROVISlON FOR EXEMPTION FOR UNINTENDED CONSEQUENCES AND THE PHASING OUT OF EXISTING SPONSORSHIP OR CONTRACTUAL OBLIGATIONS

No. R. 977         29 September 2000 

REGULATIONS RELATING TO THE PROVISlON FOR EXEMPTION FOR UNINTENDED CONSEQUENCES AND THE PHASING OUT OF EXISTING SPONSORSHIP OR CONTRACTUAL OBLIGATIONS

The Minister of Health has, in terms of sections 3 (5) and 6 (1) of the Tobacco Products Control Act, 1993 (Act No. 83 of 1993), as amended, made the regulations in the Schedule.

SCHEDULE

Definitions 

1. In these regulations, “the Act” means the Tobacco Products Control Amendment Act, 1999 (Act No. 12 of 1999).

Existing contracts

2.  Contracts, undertakings or agreements for the advertising of tobacco products, and for the organisation, sponsorship or promotion of any organised activity in the Republic by any manufacturer, importer, distributor or retailer of any tobacco product, which existed and were binding on 23 April 1999 (the date of the publication of the Act), may continue for a period not exceeding two years from that date, but subject to the conditions set out in regulation 4. 

3.  The parties to the contracts referred to in regulation 2 must, within one month of the date on which the Act comes into operation, submit to the Director-General of Health: 

(a)  copies of such contracts; or 

(b)  where such contracts are not in writing, sworn statements, by both parties, to the effect that they have entered into a contract, and setting out the terms of the contract. 

4. All advertising and promotional material that relates to any organised activity must display one of the health messages contained in Annexure A of these regulations. The space devoted to the health message must be at least one eighth of the total size of the advertisement or promotional item. 

Exemptions for unintended consequences

5.  Advertisements, including the use of tobacco trade marks, logos, brand names or company names used on tobacco products, which appear in any -

(a)  book, magazine or newspaper printed; or

(b)  film or video transmission made outside the Republic are exempted from the provisions of section 3 of the Act.

6.  The exemption referred to ‘in clause 5 does not apply in an instance where -

(a)  the primary purpose of such a book, magazine, newspaper, film or video is  the promotion of the use of tobacco or tobacco products;

(b)  such a book, magazine or newspaper is intended for sale, distribution or exhibition primarily in the Republic; or 

(c)  such an advertisement in any radio or television or any other electronic transmission is targeted primarily at people living in the Republic.

7.  Persons who import and distribute in South Africa books, magazines, newspapers, pamphlets, videos and/or films that contain tobacco advertisements must submit to the Director-General of Health, annually, a list of the names of all such books, magazines, newspapers, pamphlets, videos and/or films, together with their countries of origin, and the numbers of copies imported and distributed by them. 

Commencement of these regulations

8.  These regulations come into operation three months after the date on which the Act comes into operation. 

ME TSHABALALA-MSIMANG

MINISTER OF HEALTH

ANNEXURE A

HEALTH MESSAGES

DANGER:  SMOKING CAN KILL YOU 

DANGER:  SMOKING CAUSES CANCER

DANGER:  SMOKING CAUSES HEART DISEASE

DANGER:  SMOKING DAMAGES YOUR LUNGS

WARNING: SMOKING IS DANGEROUS TO YOUR HEALTH AND TO THE HEALTH OF CHILDREN, PREGNANT OR BREASTFEEDING WOMEN AND NON-SMOKERS. 

DANGER: TOBACCO IS ADDICTIVE 

DANGER: TOBACCO SMOKE CAUSES DISEASE

TOBACCO AND ADDICTION

Whilst it is acknowledged that nicotine addiction is regarded as "an addiction", public policy and the Technical Assistance Guidelines of Persons with Disabilities notes that no accommodation is required for persons addicted to nicotine.

As such no accommodation is required to allow smokers time off for smoke breaks during working hours. Any time off work for smokers is entirely at the discretion of the employer.

The use of electronic "cigarettes" or "vaping" has yet to be regulated by legislation and the jury is still out on the pros and cons of vaping.