SMOKING and the LAW:

South Africa has strengthened the current anti-smoking legislation with new regulations, which limit outdoor smoking, protect children and reduce the chances of fires caused by burning cigarettes.

The new South Africans laws strengthen existing legislation on smoking in public places, regulating the manufacture of tobacco products, the marketing of tobacco products to avoid making cigarettes appealing and require new pictorial health warnings on tobacco packets.

Further changes in the law will come into effect in 2010, because the Ministry of Health is still finalising regulations.

The two pieces of legislation that dramatically increase smoking fines and have been signed into law are The Tobacco Products Control Amendment Act No.23 of 2007 and The Tobacco Products Control Amendment Act No. 63 of 2008.

The following new laws apply below:

• It is now illegal for adults to smoke in a car where there is a child under 12 years of age.
• Fines up to a maximum of R50,000 will be handed to owners of a restaurant, pub, bar or workplace who breach the smoking laws and R500 for the individual smoker.
• Smoking is now illegal in “partially enclosed” public places such as covered patios, verandas, balconies, walkways and parking areas.
• Smoking is not permitted on premises, including private homes, used for commercial childcare activities, or for schooling or tutoring.
• The tobacco industry is no longer permitted to hold “parties” or use “viral” marketing to target young people.
• The sale of tobacco products to and by people under 18 years is prohibited, as is the sale of confectionery or toys resembling tobacco products.
• Also in the pipeline are rules to keep smoking away from entrances to buildings, and restrict it in sports stadiums, railway platforms, bus stops as well as outdoor dining areas.

In terms of the Tobacco Products Control Amendment Act No. 83 of 1993, smoking is not allowed in any public places, only in designated smoking areas or rooms.

Bar, pub or restaurant areas may have up to 25% designated as smoking areas.

“Smoking area” in terms of the Tobacco Products Control Amendments Act, means an area that is partitioned off with a solid partition from floor to ceiling, and may not exceed 25 % of the total floor area of the public place.

”Public place”, means any indoor, [or] enclosed or semi-enclosed area which is open to the public or any part of the public, and includes a workplace and a public conveyance as well as the area within five meters of any doorways or entrances to the public place, workplace or public conveyance.

Guidelines for restaurant, pub & café owners:

· All public areas must have clear signs, indicating smoking and non-smoking areas

· Smoking areas must be separated by a solid partition with an entrance door on which “SMOKING AREA” is displayed, written in black letters, at least 2 cm in height and 1,5 cm in width, on a white background.

· The message: “SMOKING OF TOBACCO PRODUCTS IS HARMFUL TO YOUR HEALTH AND TO THE HEALTH OF CHILDREN, PREGNANT OR BREASTFEEDING WOMEN AND NON-SMOKERS”, is to be displayed at the entrance to the designated smoking area or smoking room, written in black letters at least 2 cm in height and 1,5 cm in width on a white background.

• Notices and signs indicating where smoking is permitted must be permanently displayed and signs indicating that smoking is not permitted, must carry the warning: "ANY PERSON WHO FAILS TO COMPLY WITH THIS NOTICE SHALL BE PROSECUTED AND MAY BE LIABLE TO A FINE”.

• Artificial ventilation that serves the smoking area or smoking room must comply with the following: -
  • Maximum occupancy rate must be 1 person per m², or equal to the number of seats.
  • 7,5 l/s (litres per second) minimum fresh air supply required per person in a smoking area and 20 l/s (litres per second) minimum fresh air supply per person in a smoking room.
  • The rate of extraction must exceed the rate of supply to such an extent that the area or room, will maintain a negative pressure i.e. air will not pass back into the building. Extract air must exhaust directly to the outside air in such a way that it will not cause a nuisance.

NB: Building and Ventilation plans must be submitted to the Environmental Health section for approval — such plans must be endorsed by a registered person as contemplated in terms of the National Building Regulations and Building Standards Act, 1977, before any work commences. In any public assembly occupancy, the escape routes must not be compromised by the provision of a smoking area or room, and a smoking area or room capable of containing 25 or more people, will be required to have a minimum of 2 escape routes.

• In the 75% of the restaurant where smoking is prohibited, the owner of the restaurant has to make sure the prescribed no-smoking signs are displayed or has to make announcements in order to inform any persons who enter into the area that smoking is prohibited

• According to Cape Town Municipality’s Smoking in Public Places Guidelines, a function room used for a private celebration is in a sense an extension of a “private dwelling” and therefore the prohibitions do not apply. The organiser may well provide certain smoking areas but does not need to comply with the ratios.

• The owner or manager of a restaurant must ensure that his/her employees that do not want to be exposed to tobacco smoke in the workplace are not so exposed and that those employees who object to tobacco smoke in the workplace are not subjected to retaliation of any kind.

• No person under 18 years old is permitted to work in the public place where smoking is allowed

• No person shall sell or supply any tobacco product to any person under the age of 18 years.

• The sale of tobacco products from vending machines shall be restricted to places in which purchases from such machines are inaccessible to persons under the age of sixteen years. We would suggest that the vending machine is moved inside the pub/bar area.

• It is the restaurant owner’s responsibility to ensure that no person under the age of 18 years makes use of the vending machine.

• The vending machine must display a notice in the prescribed manner that contains the prescribed information regarding any tobacco product available for sale in that vending machine

• The fine for the owner of a restaurant that breaches the smoking laws is now a maximum of R50 000, and for the individual smoker/ patron R500.

ASPECTS THAT REQUIRE REGULATION:

• The definition of “public place” has been extended to include partially enclosed areas, the detail of which needs to be regulated.

• No person may smoke in the vicinity of a window of, ventilation inlet of, doorway to or entrance into a public place. The distance will be prescribed in regulations.

• Designated smoking areas and non-smoking areas must be indicated by signage, the content and size of which is likely to be amended in the forthcoming regulations still to be published

• Notices and signage at Point of Sale for wholesalers, retailers and vending machine operators will be prescribed in the regulations

• No person will be allowed to sell tobacco products unless the prescribed notices are displayed

* It should be made clear that on aspects of the legislation that still require regulation; the existing regulations remain in force until such time as the new regulations are published in the government gazette. Once the new regulations have been published, an update on smoking and the law will be made available on the website.

For queries on the new smoking legislation, please email:

elizabeth@jleslie.co.za.