Controversy around the classification of tobacco products as non-essential products.

The government banned the sale of tobacco products because they were not categorized as essential items in the Disaster Management Act (DMA) 2020 which implemented the lockdown [17]. The reason for this non-classification was because tobacco products do not “by their nature, fall into the same category as goods which are life-sustaining or necessary for basic functionality” (Article 162). An article published in the Daily Maverick reported that, “a prohibition on the sale of cigarettes was not spelt out in the regulations. Instead, ministers said cigarettes were not considered “essential” and so could not be sold.” (Article 31) The announcement was followed by a public debate whether or not tobacco products should have been regarded as essential goods. An article by 2Oceansvibe summarized the controversy on tobacco and other issues related to the lockdown [27]. This publication reported on how the Western Cape Government (one of nine South African provinces) gave contradicting explanation to the DMA including lifting of the ban against the sale of tobacco products on 1 April 2020 as well as the response of the Police Minister confirming that the Western Cape government could not implement provincial regulations which differ from the national government [27].

Challenges interpreting the Disaster Management Act (DMA) 2020 and its regulation.

There was confusion concerning the interpretation of the regulation guiding the DMA. For example, the Premier of the Western Cape said “[t]he agreement was that as long as it [tobacco products bought] is with shopping items, then it would be fine. It is not about just going and buying cigarettes. It’s not about the opening of tobacconists or cigarette-specific shops. It is part of your buying essential items’” (Article 23). There were also media reports suggesting that the ban had been lifted by the provincial government in the Western Cape, “The Western Cape government has lifted the ban on sale of cigarettes in major essential goods stores during lockdown.” (Article 24). This interpretation of the regulations to the DMA contradicted the interpretation by the national government as mentioned earlier.

The varying interpretation of the ban in some provinces led to challenges with implementing the ban. Despite these challenges the police minister publicly corrected the interpretation by the Western Cape Premier. The police minister was reported as saying that “the ban on the sale of cigarettes has not been lifted, as it [cigarette] is not an essential item” (Article 7) and the minister urged “businesses in the [Western Cape] province ‘not to listen to people who tell them wrong things” (Article 127).

Compliance with the ban.

At the beginning of the lockdown, it was reported that the public had responded positively by adhering to the lockdown restrictions and showed support for the ban. An article reported that “Most South Africans are adhering to lockdown rules when it comes to tobacco products that have been banned. A survey by the Human Sciences Research Council (HSRC) has found 88 percent of people were not able to buy cigarettes.” (Article 60). There were also reports that tobacco was more accessible to some categories of people. A news report mentioned that “Cigarette buying was more prevalent among those who were able to buy alcohol than those who were not able to buy alcohol -72 percent of people who bought alcohol also bought cigarettes.” (Article 60). Alcohol was also banned for most of the time tobacco products were banned. However, the media also reported that in some places (e.g., Western Cape) the ban was being flouted with people buying tobacco with groceries (likely due to the Premier’s announcement about the ban being lifted), while in other places (e.g., Johannesburg) tobacco was sold in spaza (tuck) shops.

Tobacco industry tactics during the ban.

Despite the regulations put in place by government to stop the sale (and manufacturing) of tobacco products, the tobacco industry was reportedly producing and marketing their products during this time. During this period, an article reported that British American Tobacco South Africa (BATSA) “has not appeared to have stopped producing cigarettes during the ban, with SARS [South African Revenue Service] reportedly raiding a BAT factory which continued to produce cigarettes during the ban” (Article 192). News media also mentioned strategies used by the industry under the guise of corporate social responsibility to launder their image and promote their business during the ban. On 30 May, 2020, TimesLive reported that “As part of their cunning and deception strategy disguised as a social responsibility, the industry has offered free branded masks and delivery to your door during quarantine” (Article 83). The industry also tried to market electronic cigarettes (though banned) as an alternative to cigarettes as well as institute court cases against the government (see next section).

Litigation and threats of litigation.

Following the announcement of the ban, BATSA and the Fair-Trade Independent Tobacco Association (FITA), a trade organization of local tobacco manufacturers [28], threatened to sue the government arguing that the ban was unconstitutional and tobacco products should be categorized as essential goods. However, only FITA carried out its initial threat to institute legal action against the ban in May 2020, BATSA withdrew its bid to sue the government at first. In an article published by IOL, it was mentioned that that “the case is being brought against government by the Fair-Trade Independent Tobacco Association (FITA) which is arguing that the banning of the sale of cigarettes is irrational” (Article 117). The government won this lawsuit and FITA appealed the judgement. In their appeal, FITA accused the court of making errors of interpretation when reading the Disaster Management Act (Article 201). The government again won the appeal, and the ban was upheld. An eNCA article reported that “Fita approached the court after the high court dismissed its legal challenge on the current tobacco ban. According to the North Gauteng High Court, the association failed to show why an appeal should be heard” (Article 214). FITA appealed to the Constitutional court afterwards.

After the ban was extended when the lockdown was downgraded to level 3 in June 2020 (which allowed more business activities in most sectors of the economy), other tobacco interest groups led by BATSA, Japan Tobacco International (JTI), and tobacco farmers amongst others, also sued the government to overturn the ban. The media, quoting the litigants, explained that part of the reason for the legal battle was because the industry received no response from government upon request for an explanation why the ban was being maintained even after other previously banned products were now being sold. An article published by IOL quoted Johnny Moloto, the spokesperson of BATSA, thus “Given the situation, and the lack of any response from the government, despite our ongoing efforts to engage with them, we are now commencing urgent legal proceedings” (Article 97).

Reactions to court processes against ban.

There was a wide coverage of both the FITA and BATSA court cases in the media during this period including arguments for and against the parties in the court cases (government and the tobacco industry). Some of the arguments included accusations that the court had been captured (in reference to the state capture phenomenon currently under investigation in South Africa [29]) due to delays or postponements of court hearings. A news article reported that “The giant tobacco producer and the government are pointing fingers at each other over the delay of another case that will determine whether or not the ban on the sale of tobacco products should continue” (Article 167). There were varying opinions as to who is to blame for the delays in the court cases. An article by Business Day reported that “The government has made a second attempt to delay the hearing of the first major legal challenge to the controversial cigarette ban, appealing to court again for the matter to be delayed” (Article 102). BATSA condemned the delay through their spokesperson Johnny Moloto saying, “This delaying of justice and a resolution of this issue is inexplicable’” (Article 150). BATSA also wrote a letter protesting the postponement of the case (Article 150). On the other hand, the government had accused BATSA of having caused the postponement in court by introducing new evidence and not warning them in time. A published statement from Minister Nkosazana Dlamini-Zuma (Minister of Corporative governance and traditional affairs (COGTA), in charge of the DMA) said “…the complainant has not forewarned the state about new evidence, contained in replying papers delivered on Wednesday afternoon” (Article 167).

Arguments for and against the ban during litigation.

Reasons reported as part of government’s consideration before placing the ban include health and economic factors. In the judgement delivered on the FITA vs South African government case, TimesLive reported that the court found the government took into consideration, “…relevant factors such as the economic impacts of the prohibition, the potential health and psychological impact on smokers as well as the illicit trade in cigarettes (Article 159).

Several news outlets reported that the industry questioned the scientific evidence linking smoking and COVID-19 disease severity as presented by the government in court. A media article reported the industry as saying that, “Some studies do not differentiate between current and past smokers, none of the datasets stratify smokers according to pack-year-history (a measure of quantity and duration of smoking)” (Article 121). Another article published by The South African reported that the argument made by FITA was that “The surveys relied upon by the minister were themselves without probative value and particularly unscientific and crude” (Article 276). FITA argued that “…the World Health Organisation (WHO) stated last month that no peer-reviewed studies had been published to ascertain these facts… this meant there were no conclusive studies to rely upon showing smokers were more at risk [of COVID-19 disease severity]” (Article 124). In their report of court proceedings, Fin24, quoted Advocate Arnold Subel SC, representing FITA saying, “…more peer-reviewed studies would have to be done to support the view that smokers are more likely to contract severe cases of Covid-19, as the current evidence is inconclusive” (Article 163). Fin24 also quoted the advocate representing BATSA (Advocate Alfred Cockrell SC) thus “Cockrell called into question government’s medical basis for the ban, saying that, while there was no question that smoking is harmful to health, the core question is whether there is an association between smoking and the contraction of a more severe form of Covid-19. According to Cockrell, there is a medical dispute regarding this” (Article 277).

The industry described the scientific evidence linking smoking with COVID-19 disease severity as incorrect, sloppy and outdated. A psychiatrist named Mike West, made this claim in his submission to the court on behalf of FITA in response to the government’s supplementary affidavit. The media reported that Mike West’s analysis exposes how the government’s arguments include flawed estimates of how many SA [South African] smokers will get Covid-19, incorrect study references, false claims, outdated science from the 1990s, and studies cherry-picked to show the negative effects of smoking on Covid-19” (Article 121).

A potential protective nature of nicotine against COVID-19 as reported in some pre-print academic papers was also presented in court as reported by some media outlets. TimesLive reported that ‘The tobacco industry has countered this [the ban] by pointing to other peer-reviewed studies that suggest smokers are less likely to be hospitalised when testing positive for Covid-19 and that nicotine may offer potential protection against the disease’ (Article 173). Another argument was that the damage caused by smoking takes years to accumulate therefore it cannot be reversed overnight, making the ban not a good idea. News24 cited a scientist who said that “…but as to whether stopping smoking would protect you against Covid-19, the answer was ‘no’—because the damage caused by smoking does not occur overnight, according to Madhi.” (Article 180).

Conditions for lifting the ban.

During the period the ban was in place, there were reports speculating about what should be considered before the lifting of the ban. The health risk, the impact on the economy and the progression of the COVID-19 pandemic in South Africa were some of the factors proposed to be examine before lifting the ban. The conditions spelt out by the South African president as reported by the media include “…the progression of the disease in South Africa, the readiness of our health systems and evolving knowledge on the nature and impact of the virus itself” (Article 117). There were also reports about the uncertainty of when the ban would be lifted and who would make the decision on when the ban is to be lifted. An article by Eyewitness News reported that “According to government, the bans on these products will remain in place throughout the lockdown period and at this stage, with over 380,000 positives recorded, there’s no telling when lockdown will be declared over” (Article 234).

Criticism of government actions during the ban.

There were many reports critical of the government’s decision to impose the ban. The government was accused of not making a “good decision” by banning the sales of tobacco products. The government was also accused of not being able to give satisfactory reasons for imposing the ban as well as cherry-picking scientific evidence to support the ban. An important development during this period was the announcement that the ban would be lifted on 1 May 2022 as the country moved from lockdown level 4 to level 3. However, this was subsequently reversed leading to amplified criticism of the government and accusations that the government was controlling people. A news article published on the 30 April 2020 reported a community member saying “My mother didn’t even tell me I can’t smoke, Ramaphosa said we can start buying cigarettes from the 1st of May and now they change their minds. Are they trying to control us people?” (Article 41).

Political polarization of support and opposition to the ban.

The media also reported the ban as a political battle between the various political parties with political party members tending to align themselves with certain positions about the ban. An article in the Daily Maverick reported that “[t]here is also a strong party-political dimension, with ANC supporters being far less likely (15%) to want the ban to be lifted, than those who said they would vote EFF (25%), DA (62%) or ‘another party’ (42%) if an election were to be held” (Article 246).

Health arguments in support of the ban.

There were varied arguments put forward in support of the ban in the media, including health reasons why the ban was needed. A report by Fin24 stated that “The state has defended the ban as necessary for health reasons” (Article 201). Quoting from the responding affidavit submitted by the COGTA Minister, Dr Dlamini-Zuma, TimesLive reported the following “In a situation of evolving scientific knowledge and with infection numbers rising, a responsible government has to take a cautious approach. Prohibiting the sale of tobacco products during lockdown serves to reduce these risks, not only in respect of smokers themselves, but also those who would otherwise be exposed to second-hand smoke under lockdown conditions” (Article 108). The severity of COVID-19 among smokers and how the ban can assist smokers to quit were highlighted in several media reports. The South African reported that “In defense of government’s position, Dlamini-Zuma [COGTA Minister] has argued that the ban has afforded many South Africans an opportunity to quit smoking and has, thereby, reduced the burden on the healthcare system” (Article 156).

Economic and illicit trade arguments in support for the ban.

Interestingly, a decrease in illicit trade was put forward to argue in support of the ban. It was reported that a decrease in smoking prevalence would lead to a decrease in illicit trade. An article reported that “If fewer South Africans smoke, then the consumer demand for illicit cigarettes will fall and this will be accompanied by a decline in the ‘illicit trade’” (Article 91).

Correcting misinformation about the ban.

Opposition to the ban also stemmed from the misinformation that the ban was a prelude to total prohibition of tobacco use in the country as was seen in the United States with the prohibition of alcohol in the 1920s and early 1930s. Kopo Mapila (a former public sector policy analyst) writing in the Daily Maverick discussed the dissimilarity between these two scenarios, “… the strongest argument against banning cigarettes is built on the US experience of Prohibition.… While South Africa has a well-established illicit cigarette trade and certainly its own economic woes, the situation is hardly comparable when looking at the costs against their respective time scales. Prohibition in the US lasted for 13 years. The cigarette ban, on the other hand, is an emergency measure that will last, at the extreme, around 18–24 months–the estimated vaccine development period. Unlike Prohibition, the ban is not implemented as an indefinite regulation to manage ‘immoral behaviour; it is, rather, a short-term measure to reduce the number of people requiring hospitalisation and stretching capacity” (Article 126).

Protesting the ban.

Apart from legal actions against the ban led by various tobacco industry players, petitions and protest were also among the anti-tobacco sales ban activities which took place during the period the ban was in place. There was a Dear Mr. President protest held to get the ban lifted and people were mobilized to show support for the protest on social media. A newspaper article reported that “People who can’t make it are being asked to upload selfies with the hashtag #SmokersProtest, to ensure a digital presence is felt.” (Article 117).

Social and health arguments against the ban.

Anti-tobacco sales ban argument centred around the social, health and economic issues which were claimed to result from the ban. The ban was reported as a social issue needing to be addressed because it caused tensions in households (due to nicotine withdrawals) and negative activities (smokers turning to the illicit cigarette market) and reveals the inequality in the society. An article by Kopo Mapila published on 10 June 2020, describes two groups of opposition voices to the ban. The “…My Lungs, My Choice Movement, and the second, the ‘Black Market Brigade”, whose concerns rest on corruption and criminality in the black market”, he therefore suggested that “…a moral approach to public policy in South Africa should give short shrift to both sets of complaints” (Article 126). The South Africa Drug Initiative called for the ban to be lifted because “It believed it discriminated against the poor, puts the health of the mentally ill and marginalised at risk, and gifts crime syndicates and gangs another source of income” (Article 22). It was also reported that the ban encourages movement (in search of cigarettes) during the lockdown leading to the spread of COVID-19, and that it increases the sharing of cigarettes (due to its scarcity), putting the health of the people at a greater risk which is not beneficial to the health system.

Human rights and harm reduction arguments against the ban.

The ban was said to infringe on the rights to sell tobacco, which affected tobacco farmers and sellers. BATSA stated in their court papers that they “…challenge the constitutionality of the ban as an ‘irrational interference’ on the rights of tobacco farmers, manufacturers, wholesalers and retailers, and an infringement on the dignity, privacy and physical integrity of smokers” (Article 98).

Electronic cigarette industry allies also presented electronic cigarettes as a safer alternative to traditional tobacco products hence should have been excluded from the ban. An article by The South African reported that the African Harm Reduction Alliance implored the government to “…consider how vapers can be assured continued access to these less-harmful products during this critical time” (Article 01).

Economic and illicit trade arguments against the ban.

Many arguments were made to indicate that the ban on the sale of tobacco products had a negative impact on the economy due to an increase in illicit trade and loss in tax revenue. According to an article by Business Day “The ban, which has resulted in a spike in the illicit trade of cigarettes, has also cost the SA Revenue Service billions of rand in lost excise duty.” (Article 115).

Argument about job losses in the farms was also made in opposition to the ban. TimesLives (Sunday Times) reported that “…the tobacco sales ban had left farmers and farm workers in despair. ‘It has destroyed marketing opportunities, income streams, jobs and livelihoods in the primary production sector’” (Article 158).