Do South Africa’s Smoking Laws go far enough to Protect the Right of Children to a Healthy Environment? A Critical Review of the Law Regulating Smoking in South Africa

Paper presented at the 2013 CLEA Conference in Durban

Michael C Buthelezi
School of Law, University of KwaZulu-Natal

There is strong evidence to the effect that children are at risk from parents who smoke during their children’s early years of life. The risks include respiratory diseases, such as lower respiratory tract illnesses, asthma, and respiratory symptoms such as wheezing, coughing, breathlessness, and phlegm. They are also more likely to suffer from lung infections, and middle-ear disease. Thus in 1997, when the international community came together to fight against the tobacco use pandemic, the leaders of the G-Eight (G-8), plus Russia signed a Declaration on Children’s Environmental Health. The Declaration led to the convening of an international consultation on issues of Environmental Tobacco Smoke (ETS) in general, and Child Care, in particular. The consultation acknowledged that ETS has serious adverse effects on children’s health. In 1999 under the stewardship of its then Director-General, Dr Gro Harlem Brundtland, the World Health Organization began work in earnest on the WHO Framework Convention on Tobacco Control. From then on global tobacco control was made an WHO priority. The Tobacco Control Framework Convention (TCFC) was ready for signing and for ratification in 2003. South Africa was among the first Member States to adopt the Convention, even though it did not ratify it until April 2005. It amended the 1993 Tobacco Products Control Act (in 1996) with ambitious provision aimed at protecting the most vulnerable against secondary smoke. Recently, in 2008, the Act underwent further amendments to tighten the loopholes. This paper, reviews South Africa’s tobacco control legislation, in light of recent amendments, the extent to which the Act has protected children’s right to an environment free from tobacco pollution and the challenges of enforcement. The paper begins by tracing the international background to South Africa’s tobacco legislation, followed by a critical review and the recommendations as well as a conclusion.

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