Last year the WTO upheld legislation in Australia, which severely restricted the advertisement of tobacco products, on the ground that the legislation qualified as a legitimate public health measure.
With restrictive advertising vis-à-vis tobacco products quickly becoming an international trend, it would likely only be a matter of time before the advent of similar legislation in South Africa which would follow suit in prescribing stricter requirements for the advertisement of tobacco products.
In a move that brings South Africa a step closer to that, the Department of Health has invited public comments on the Draft Control of Tobacco Products and Electronic Delivery Systems Bill, 2018 within 3 months of the invitation date, before 9 August 2018.
The objectives of the proposed legislation are stated, inter alia, as "to regulate the packaging and appearance of tobacco products and electronic delivery systems and to make provision for the standardisation of their packaging".
The proposed legislation is far reaching as it also seeks to control the advertisement and sale of e-cigarettes (electronic delivery systems), including those that do not contain nicotine.
Aspects of the proposed legislation which will undoubtedly attract comment from the public are the overall ban on advertising and sponsorship of or by tobacco products and electronic delivery systems and the provisions relating to the standardised packaging and labelling of tobacco products.
The proposed Act specifically requires that Regulations be passed in relation to tobacco products that prescribe:
- uniform textured and plain colour packaging;
- the material to be used and the size and shape of the packaging;
- that logos, branding or other promotional elements on, inside or attached to the packaging of tobacco products or an individual product be prohibited; and
- that only the brand and product name may appear on packaging in a standard colour and font together with other mandatory information such as health warnings.
The provisions relating to the packaging and labelling of e-cigarettes are currently quite ambiguous, but Regulations may subsequently be passed which change the position.
These changes in legislation conflict with the trade mark rights of the tobacco industry, which ordinarily entitle their owners to the use of their registered trade marks, including logo marks, to the exclusion of all others. We are therefore interested to see whether a court case will be borne of this conflict and continue to watch this space.
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