Those of us who grew up in the sixties and seventies, will probably remember the cigarette sweets, complete with wrapping and packaging, we used to buy at the café around the corner. We were totally oblivious to the devious campaigns of the cigarette manufacturers in luring children into the “fashion” of smoking and had hours of fun dressing up and pretending to be sophisticated with make believe cigarettes in our hands and balls of chewing gum in our mouths! Time changes everything – sometimes for good – and the parents of today will probably rather die than see their children playing with a cigarette “look alike” sweet. The manufacture of “look alike toys” has also been prohibited by legislation.

Smoking in the work place is regulated by the Tobacco Products Control Act 83 of 1993 and the regulations as published in GNR975 of GG21610 of 29 September 2000.

An employer may prohibit smoking at the workplace in toto or designate a portion of a public place as a smoking area, provided that it complies with the regulations. The employer is also obliged to ensure that no person smokes anywhere other than in the designated smoking area and employees who do not want to be exposed to tobacco smoke must be protected. Employees may object to tobacco smoke in the workplace without retaliation of any kind.

Employers must have a written policy on smoking in the workplace, and the policy must be applied within three months from the date of coming into operation of the Tobacco Products Control Amendment Act, 1999 (Act 12 of 1999).

The Tobacco Products Control Amendment Act, 2008 (Act no. 63 of 2008) came into operation on 21 August 2009. In terms of the amendment act, fines have been increased to R50 000.00 for employers who allow smoking in the workplace outside designated smoking areas. The individual smoker can also now be fined with R500.00. Smoking is also now illegal in partially enclosed areas such as covered patios, verandas, balconies, walkways and parking areas. Employers without designated smoking areas should take note of the fact that its employees may not smoke on the balcony or in the car park any more.

An interesting phenomenon has developed recently, opening another question. Tar in your lungs, pollution and second hand, or passive smoking, are reasons why smoking in public places is prohibited. Now, is it possible to smoke in these prohibited places, because the smoking device does not qualify as a tobacco product and does not create all these by-products? Hence, the electronic cigarette. The electronic cigarette, also known as the personal vaporizer or the ecigarette is a battery powered device that provides inhaled doses of nicotine by way of a vaporized solution. It is marketed as an alternative to smoking tobacco products. No tobacco smoke or combustion process is involved and a water vapor is released into the air. A little more lethal than the sweets of the olden days, but none the less, a different device in the guise of a cigarette.

Certain of the products are marketed as being safe to use in restaurants and bars (public places) as it does not release tobacco smoke and does not result in second hand smoking.The use of the ecigarette is also not banned in the UK and Europe and can be used in public places. Various other countries such as Australia, Brazil and Canada have banned the device.

The obvious question in our workplace environment should then be – is smoking an ecigarette prohibited under the Tobacco Products Control Act of 1993 or the Amendment Act of 2008? Smoking of tobacco products is prohibited under the Act and “tobacco product” is defined as “a product containing tobacco that is intended for human consumption, and includes, but is not limited to, any device, pipe, water pipe, papers, tubes, filters, portion pouches or similar objects manufactured for use in the consumption of tobacco”.

Since the ecigarette is a device containing a mouthpiece, heating element, battery and electronics, the question that should be asked is whether it is used for the consumption of tobacco? Since the device is not used to consume tobacco and does not contain any tobacco product as only nicotine is used in a diluted form, it seems that the ecigarette does not fall under the definitions of the Act and is consequently not banned in this country by way of tobacco or health legislation. Due to it not being covered by the Act, smoking of this device seems also not to be prohibited in public areas covered by the Act^[1].

For more information contact Johanette Rheeder jrattorneys@yebo.co.za