Written by Dr Brian Benfield, retired professor, Department of Economics, University of the Witwatersrand, and Senior Associate and Board member of the Free Market Foundation.
The Tobacco Products and Electronic Delivery Systems Control Bill, 2022, currently before Parliament, represents not merely a misguided public health intervention but an unambiguous assault on consumer autonomy and the rule of law.
Cloaked in the familiar rhetoric of “health protection,” this Bill marks a dangerous acceleration of command-and-control policymaking, one that substitutes centralised fiat for evidence, suppresses innovation in favour of bureaucratic orthodoxy, and imposes criminal liability where market solutions would very adequately suffice.
Far from embodying principled or proportionate regulation, the proposed legislation exemplifies the kind of illiberal overreach that corrodes both economic dynamism and institutional legitimacy. It is, in short, a textbook case of regulatory overkill, and it must be opposed in the strongest possible terms by all who value the primacy of individual sovereignty and market primacy.
At its core, the Bill is not regulatory, it is prohibitory. It is a regulatory war on lawful enterprise. It seeks to make indoor public areas and “certain outdoor places” entirely smoke-free. It proposes a blanket ban on vending machines, extinguishing a legal sales channel. It mandates plain packaging stripped of any branding, adorned with graphic health warnings that must cover at least 65% of the surface area. It prohibits the display of tobacco products at the point of sale, rendering lawful goods effectively invisible to the adult consumer. It even extends this draconian regime to vapes and e-cigarettes, treating all alternatives to combustible tobacco with the same severity.
This is not public health legislation. It is industrial strangulation by statute. It lays siege to an entire category of lawful commerce, commerce that employs thousands, contributes billions in tax revenues, and sustains extensive value chains from agriculture to retail. The Bill is an ideological artefact, not a rational instrument of state.
Perhaps the most flagrant violation of market norms lies in the forced standardisation of packaging, which compels the erasure of all brand identifiers, logos, fonts, colours, and trade dress. This is not regulation; but regulatory confiscation. It is state-sanctioned theft of brand capital. By obliterating intellectual property developed over decades through legal investment and consumer engagement, the state is effectively expropriating private brand equity, that is property, without compensation.
In an open market system, brand capital is a cornerstone of enterprise value. It differentiates products, rewards quality and underpins competitive entry. To legislate its elimination is to declare war on intangible and intellectual property rights, setting a precedent that could easily metastasise into other consumer-facing sectors, alcohol, fast food, carbonated beverages, under the same paternalistic logic.
Equally indefensible is the Bill’s indiscriminate conflation of all nicotine products, including reduced-risk alternatives such as e-cigarettes and heated tobacco devices, with traditional combustible products. By subjecting genuine attempts at harm-reduction innovations to identical restrictions, plain packaging, display bans, usage prohibitions, it collapses a critical distinction between high-risk and low-risk consumption.
This is scientific illiteracy elevated to legislative doctrine. A growing body of international research, including from institutions such as Public Health England, has affirmed that electronic nicotine delivery systems pose a fraction of the health risk associated with smoking. Rather than incentivising a consumer shift towards these less harmful options, the Bill effectively criminalises and declares war on the most promising tools of tobacco harm reduction.
This is not regulation in the public interest; it is a reckless exercise in regulatory sabotage, punishing innovation in favour of a failed abstinence-only orthodoxy.
Criminalising everyday commerce by distorting our legal system, the Bill staggeringly empowers the state to impose prison sentences of up to 20 years for non-compliance with packaging or labelling requirements. This is not merely disproportionate, it is judicial grotesquery. In a society struggling with violent crime, systemic corruption and infrastructural collapse, to devote law enforcement resources to the incarceration of businesspeople over administrative infractions is irrational, ignorant, and perverse.
Criminal law should be the final instrument of enforcement, reserved for wilful and egregious harms. Here it is deployed as a bludgeon, a mechanism to chill legitimate enterprise, deter investment, and reinforce a culture of fear and uncertainty among market participants.
The inevitable consequence of this oppressive regime will be to fuel a boom for those apparently well-connected people in the illicit tobacco trade, already rampant in South Africa. Estimates suggest that over 30% of cigarettes sold in the country are illicit, untaxed, unregulated, and often manufactured in defiance of safety standards. This Bill will accelerate that trend. Plain packaging, advertising bans and the suppression of legitimate outlets will eliminate competitive advantage for lawful firms, driving price-sensitive consumers directly into the arms of black market operators.
In effect, the state is promoting another policy of economic self-harm, deliberately destroying the formal sector, thereby handing market share to criminal syndicates. This is not public health policy; it is economic sabotage, dressed up in technocratic legalese.
The Bill also entrenches a deeply troubling violation of the fundamentals of the rule of law through an unconscionable expansion of executive discretion and bureaucratic fiat. The Minister of Health is granted sweeping powers to define on a whim packaging standards, to publicly disclose a company’s proprietary information, to unilaterally amend regulations and to establish an opaque “Monitoring Committee” of no less than 15 selected “experts” to serve on another five-year gravy train. Naturally, among these “experts” one can undoubtedly expect to find numerous anti-tobacco consultants and NGOs.
This centralisation of authority and ministerial absolutism, devoid of clear checks, balances, or parliamentary oversight, is an affront to constitutional democracy. It replaces the rule of law with the rule of ministerial caprice. It subverts predictability, undermines business confidence, and entrenches bureaucratic autocracy in the guise of health policy.
Underlying this legislative overreach is a toxic and deeply illiberal infantilisation of adult consumers. The underlying assumption is that adult citizens lack the capacity to make rational decisions for themselves, and therefore must be coerced into state-approved behaviour. The Bill reflects a worldview in which individual agency is subordinate to bureaucratic wisdom, and where the market must be subordinated to moralistic planning.
The unleashing of such paternalism has no place in a free society. Risk is an inescapable feature of human existence. Adults should have the right to informed choice, not to be subject to state condescension by diktat. The role of government is to provide transparent information and regulate demonstrable externalities, not to impose ideological “purity” by force.
This Bill sets a dangerous precedent. A precedent that lies not only in its immediate consequences but in the paradigm it sets for the future of South Africa’s economic governance. If the state can strip a lawful industry of its branding, censor its visibility, criminalise its marketing, and jail its participants over technical violations today, what sector will be safe from such malevolent encroachment tomorrow?
Sugar, alcohol, processed foods, fossil fuels, any politically disfavoured industry will be next.
This is the thin edge of an authoritarian wedge. If left unchallenged it will signal that no industry, no matter how legal or legitimate, is beyond the reach of pertinacious and ideologically motivated expropriation.
The Tobacco Products and Electronic Delivery Systems Control Bill is not an act of prudent governance. It is an ideologically driven campaign of market repression, scientific denialism, and legislative absolutism. It attacks business confidence, disrespects consumer intelligence, and flirts with economic vandalism in the name of public virtue.
South Africa does not need a war on nicotine. It needs a war on bad law, on paternalistic arrogance, and on the creeping instinct to control rather than to empower. The principles of free exchange, limited government, and consumer sovereignty demand nothing less than the full rejection of this ill-conceived and dangerously expansive legislation.
If the state’s role is to protect constitutional liberty, not extinguish it, then this Bill must not pass.
This article first appeared in Go Legal. Find the original here.
Photo by Rusty Watson on Unsplash
Relevant Agribook pages include “Tobacco“
