South Africa’s largest cigarette manufacturer, British American Tobacco, says the state’s justification for banning the sale of tobacco products during lockdown is an “exercise in smoke and mirrors” that has produced “few benefits and immense harm”.
BATSA is set to challenge the ban in the Western Cape High Court next month.
The government defeated an earlier court challenge to unban cigarettes from the Fair Trade Independent Tobacco Association in June, with the court ruling that it fell within the powers of the state under the Disaster Management Act to ban the sale of tobacco.
But BATSA, whose brands include Dunhill, Peter Stuyvesant, and Lucky Strike, says it will be introducing new legal arguments not heard in the FITA case.
The sale of cigarettes and tobacco products has remained prohibited since the start of the nationwide lockdown in late March, despite strong pushback from the tobacco industry about the potential for job losses, the rise of an illicit market, and a fall in excise tax revenues.
The government has justified the ban by arguing that scientific studies support the view that smoking produces more severe cases of Covid-19. Given that South Africa has around 11 million smokers, this would strain the country’s health system.
Constitutional rights “violated”
In court papers filed this week, BATSA says it will be arguing in court that Regulation 45 of the lockdown regulations is unconstitutional, as it “violates the rights of every participant in the supply chain for tobacco and vaping products”.
Regulation 45 prohibits the sale of tobacco products, except for export. In the FITA case, which was dismissed, the tobacco grouping did not argue that the regulation was unconstitutional.
BATSA, however, says that by limiting the right of smokers to buy cigarettes, their right to dignity has been impeded as they have been “denied the right to make their own choices.”
“We submit that the infringement of autonomy amounts to a limitation on the right to human dignity in Section 10 of the Constitution. The Minister bears the onus of justifying this limitation.”
The tobacco group will also argue that banning cigarettes amounts to an “unjustifiable intrusion by the state into the private sphere,” and as such limits the Constitutional right to privacy.
“In depriving consumers of the ability to use tobacco and vaping products that they find pleasurable and calming in stressful circumstances, the Minister has infringed their right to personal autonomy and bodily integrity.”
The group also intends to cast doubt on the core of the state’s justification – that smoking causes more severe cases of Covid-19.
“The Minister’s concern that the health system in South Africa may be overrun if the sale of cigarettes is allowed, is not supported by the experience of other countries,” states an affidavit by a doctor that BATSA will rely on.
While the state has based its health arguments on several sources, it has repeatedly referred to a statement by the World Health Organisation to support its views.
In a statement on May 11, the WHO stated that “a review of studies by public health experts convened by WHO on 29 April 2020 found that smokers are more likely to develop severe disease with Covid-19, compared to non-smokers.”
BATSA, meanwhile, will also tell the court that Regulation 45 has not been successful in reducing the number of smokers in SA, as cigarettes are freely available on the illicit market. This is a similar argument to one used by FITA in its earlier court challenge.