Vapes, or Electronic Nicotine Delivery Systems (ENDS), have become increasingly popular amongst South Africans in recent years. Many people have embraced vaping due to the belief that it is a less harmful alternative to cigarette smoking, the wide variety of available flavours, the reduced odour compared to traditional cigarettes, and the ability to control nicotine levels, wattage, and airflow. However, with technology rapidly advancing and creating new iterations of vaping products at an unprecedented pace, it begs the question of whether the legislature can truly keep up, or if it is in danger of becoming insufficient and/or obsolete. There are, however, attempts being made through the implementation of new regulations to help regulate the use of vaping, especially amongst the youth.  

The New Government Regulations

South Africa recently joined the global debate on vaping, introducing new draft regulations, in the form of the Tobacco Products and Electronic Delivery Systems Control Bill (“The Bill”), which is aimed at curbing the use of ENDS, due to concerns rooted in the potential health risks associated with vaping and its appeal to minors. As it stands, South Africa’s vaping regulation of ENDS’s lies within the Tobacco Control Amendment Act (“TCAA”), which came into effect in 2020.

This stands to be changed if the Bill comes in to effect as the Bill addresses several key restrictions, including the following:

• Bans on certain e-cigarette products: the sale of flavoured e-cigarettes and disposable e-cigarettes is restricted.

• Increased taxes: e-cigarettes have been subjected to higher taxes, making them less affordable to consumers.

• Age Restrictions: the sale of e-cigarettes and vaping devices are now strictly prohibited to individuals under the age of 18.

• Workplace restrictions: smoking and vaping are banned in all workplaces, including indoor areas, public transport, and enclosed public spaces.

• Advertising Bans: advertising and promotion of vaping products are heavily restricted, including on public transport, at public events, and in schools.

• Flavour Restrictions: certain flavours, like fruity or dessert flavours which particularly appeal to minors, are banned from e-cigarettes.

• Packaging Requirements: e-cigarette packaging must include explicit health warnings and information about nicotine content, and must adhere to the prescribed appearance, size and shape.

• Point of Sale: a retailer or wholesaler who offers for sale or sells a relevant product or a related product may not display that product at his or her place of business but may make the product available to consumers upon request, provided that the requestor is not a minor.

Legal Implications

In terms of the TCAA, the legal implications of vaping are technically up in the air as most vapes do not contain tobacco and are not technically traditional cigarettes. Therefore, they cannot be evaluated as “tobacco products” in terms of South Africa’s Tobacco Control Act 83 of 1993.

The Bill, however, outlines a range of legal implications for individuals and businesses that fail to comply with its restrictions. The potential implications include the following:

• Fines: significant financial penalties can be imposed for various offenses, such as selling ENDS products to minors, displaying them at point of sale, or manufacturing or selling ENDS products with misleading packaging or labeling.

• Imprisonment: any person guilty of the aforesaid offences could potentially be liable on conviction to imprisonment not exceeding a period of three months, and depending of the severity of the offence, to a period not exceeding 20 years. 

• Business Closure: Businesses that repeatedly violate the provisions of the Bill may face closure or suspension of their licenses.

• Product Confiscation: Authorities may confiscate tobacco products or electronic delivery systems that are not compliant with the Bill’s regulations.

• Legal Liability: individuals and businesses may be held liable for any harm or damages caused by non-compliance with the Bill, such as health problems or injuries resulting from the use of non-compliant products.

The Impact of the Bill

The Tobacco Products and Electronic Systems Control Bill represents a significant step forward in South Africa’s efforts to protect public health and regulate the vaping industry. By imposing stricter restrictions on the sale, use and marketing of tobacco products and e-cigarettes, the bill aims to reduce tobacco consumption and prevent young people from becoming addicted to nicotine.

The Bill has also faced criticism, with concerns raised about the potential impact on small businesses in the vaping industry and the effectiveness of the regulations in preventing underage vaping.

The Future of Vaping in South Africa

The Bill is currently under consideration by the National Assembly and is to come into operation as the Tobacco Products and Electronic Delivery System Control Act, 2022, on a date fixed by the President by proclamation in the Government Gazette.

Considering the above, will South Africa see a genuine decline in vaping rates, or will the industry simply adapt and find new ways to entice consumers, particularly young people.

Written by Jemma Kyle.

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