'Cigarettes are not essential': Court orders tobacco ban to stay in place

“The application by Fair-Trade Independent Tobacco Association is dismissed.”

With these words, the high court ruled on Friday that the sale of tobacco products would remain banned under the government's lockdown regulations.

Fita had taken the government to court, challenging the ongoing ban on tobacco and related products. The government had opposed the court application relying largely on the negative health implications of smoking.

The three judges hearing the case said in their judgment, dated June 26: “Many products and services were prohibited during the lockdown in so far as they were defined as non-essential.

“Many industries were restricted as a goal of curbing and managing the pandemic.

“Differential or preferential treatment for tobacco products and/or the tobacco industry therefore cannot be countenanced, as tobacco products were simply not considered to be essential.

“Fita’s argument that cigarettes ought to have been considered 'essential' because they are addictive has no merit. The fact that a substance is addictive does not render it essential. We therefore find no basis on which to interpret the level 5 regulations as permitting the sale of tobacco products.”

The 39-page judgment rules overwhelmingly in Dlamini-Zuma's favour in all aspects of the legal challenge, including that the law banning sales of tobacco products was rational, that it was in line with her legal powers, and that she had consulted sufficient medical evidence on which to base the decision.

The judges said that, simply, the “rationality standard” required that a decision by the executive should be in line with the purpose for which the power was given.

“Importantly, to pass the test for rationality, there must be a rational connection between the impugned decision and the purpose sought to be achieved through such decisions.

“Ultimately in this matter, our constitution requires that the regulations, being legislation, be rationally related to a legitimate governmental purpose. If not, they are inconsistent with the rule of law and therefore invalid. It is through this prism that we consider the challenge to the minister’s decision to ban the sale of tobacco products through regulations 27 and 45.

“As such, the question should plainly be whether the minister, in placing a ban on the sale of tobacco products in response to the Covid-19 pandemic, acted irrationally and in so doing breached the principle of legality. All that we have to determine as a court is whether a rational connection between a legitimate governmental purpose (i.e. containing the spread of the virus and saving lives) and the means chosen (i.e. banning the sale of all tobacco products) exists,” they write.

They continue that Dlamini-Zuma's stated “primary reason” for the laws was “to protect human life and health and to reduce the potential strain on the health care system”. She also relied on medical evidence of the potential harm smoking had in relation to Covid-19.

While the judges acknowledged that Fita said that the evidence Dlamini-Zuma used was “inadequate and does not support her decision to ban the sale of tobacco products”, they said this was not the question before the court.

“Our task is to determine whether such evidence provides a sufficient rational basis for the minister to outlaw the sale of tobacco products and cigarettes, as a means of curbing the Covid-19 virus spread and preventing a strain on the country’s health-care facilities.

“We hold the view that a vigorous attempt to contain the spread of the virus at all costs had to be made especially bearing in mind the high Covid-19 mortality rates and the fact that, as a developing country with limited resources as well as an already overwhelmed health-care system, SA is ill-equipped to survive the full brunt of the pandemic at its peak if no concerted efforts are made to contain the virus.

“In our view, the medical material and other reports ... considered by the minister, though still developing and not conclusive regarding a higher Covid-19 virus progression amongst smokers compared to non-smokers, provided the minister with a firm rational basis to promulgate regulations 27 and 45, outlawing the sale of tobacco products and cigarettes,” they say.

The judges also state that because some people had stopped smoking because of the ban — despite research presented by both parties showing differences in exactly what percentage of people had quit — it means that the legislation had served its purpose.

“Given the link between the adverse effects of Covid-19 and smoking, it can be said that the objective of containing the virus through imposing the ban on the sale of tobacco products was achieved ... We are satisfied that in arriving at the decision to impose the ban, the minister considered all of the relevant medical literature — even evidence that may have been at odds with the view linking high Covid-19 virus progression amongst smokers when compared with non-smokers.

“This fortifies our view that the objectivity requirement has been fulfilled,” the judges say.

The judges also reject Fita's contestation that Dlamini-Zuma had “failed to consider a number of other 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”.

They state that, according to Dlamini-Zuma, these were taken into account.

“On the contention that she failed to consider the economic impacts of the prohibition, the minister submits that the economic impacts of the prohibition were indeed considered but that it was decided that any impact that the prohibition may have on the economy would be outweighed by the harm posed to life and the health-care system by allowing the continued sale of tobacco products.

“The minister also pointed out that if tobacco use did indeed give rise to more people with a more severe form of Covid-19, a failure to impose the ban would have in turn resulted in additional health-care costs for the state.

“As regards to the contention that she failed to consider the psychological and other effects on people when they suddenly stopped smoking, the minister sets out in sufficient detail the medical facilities that are available to assist smokers in dealing with the effects of smoking cessation. This was not disputed by Fita. Fita's contention in this regard is therefore rejected,” the judgment reads.

The trio of judges also state that because SA was one of just two countries — Botswana being the other — to have banned cigarettes had “no consequence” on the SA government's decision for the ban.

In regard to the “thriving trade” in illegal tobacco products, the court said that it was Fita's contention that the ban “has rather had the effect of encouraging trade in illicit cigarettes”.

Fita also argued that the surge in prices meant that more people were sharing cigarettes — in direct opposition to the stated objectives and reasoning behind the ban.

But the court sided with Dlamini-Zuma, saying that because the ban was effective in reducing access to cigarettes, it had achieved its goal.

“Even if the ban has not resulted in every smoker in the country stopping the habit, this does not render the ban irrational given that the test for rationality is not whether the means chosen were the best possible means but rather whether the chosen means, being the ban, could rationally achieve the objective.

“Whilst it is correct that the ban has not resulted in each and every smoker in the country quitting in an effort to contain the virus, it should be borne in mind that when the minister took the decision to ban the sale of tobacco products, her objective was not to stop every smoker from continuing with smoking, it was to alleviate the potential devastating burden on the already constrained health-care system.

“Our view is that the reality of the illicit trade of tobacco products is not fatal to the rationality of the ban given that the minister only needs to show that the means chosen to achieve the intended objective were reasonably capable of achieving it.

“In fact, the continuing illicit trade in tobacco products does not negate the overwhelming view that smoking affects the respiratory system and renders smokers more susceptible than non-smokers to the heightened progression of the Covid-19 virus especially amongst persons with comorbidities such as diabetes, etc.

“We once again reiterate that an important consideration that should not be lost sight of is that the means chosen by the minister, i.e. the ban, need not be the most effective nor the best suited. Ultimately, the question remains whether there is a rational connection between the ban, as the means preferred, and the saving of lives through curbing infections and preventing a strain to the country’s health-care facilities.

“This, we are satisfied, the minister has been able to demonstrate,” the judgment reads.

The court also dealt with the Fita submission that cigarettes should be viewed in the same way as those products that were considered to be essential goods under the initial regulations”.

“Fita further submits that it is common cause that cigarettes and tobacco products are addictive and the withdrawal from these products could lead to serious physical, psychological and emotional harm. This is aggravated by the freely available illicit, non-regulated products that are most hazardous to health. In this respect, Fita contends that the legal regulated products are not dissimilar from medication, which was understandably permitted under the initial regulations,” the judges write.

They continue that whether a product was essential or not had to be looked at in context “and in light of their purpose”.

“Tobacco products did not fall within the ambit of 'essential goods' and their sale was prohibited. Tobacco products are plainly not food, cleaning and hygiene products, fuel and clearly not medical products. They would constitute 'essential goods' only if they could be considered ‘basic goods’ akin to airtime and electricity.

“Cigarettes and related tobacco products do not, by their nature, fall into the same category as goods which are life-sustaining or necessary for basic functionality. An interpretation of the regulations to expand to such a meaning would be insupportable in light of the purpose of the legislation and the nature of essential goods provided for in the regulations. Simply because a good is addictive it does not necessarily follow that it is therefore necessary for human survival or required for basic human functionality.

“We agree with the minister’s submission that seen in the proper context, the level five regulations cannot be interpreted as including tobacco products within the ambit of 'basic goods'. Fita's argument that cigarettes ought to have been considered 'essential' because they are additive has no merit.

“We therefore find no basis on which to interpret the level 5 regulations as permitting the sale of tobacco products.

“In the circumstances, the following order is granted: The application by Fair-Trade Independent Tobacco Association is dismissed with costs, such costs to include the costs of three counsel,” the judgment concludes.

In a statement, government welcomed the decision.

GCIS director-general, Phumla Williams said: “Government continues to remain steadfast that the ban on cigarette and tobacco product sales was put in place to protect the health of South African citizens as a result of Covid-19.”

Meanwhile, government also welcomed a decision by the Western Cape High Court on Friday to dismiss a legal to challenge the constitutionality of the National Coronavirus Command Council as a subcommittee of Cabinet.