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Tobacco Products Control Act, 1993 (Act No. 83 of 1993)

1. Definitions

 

 

In this Act, unless the context otherwise indicates-

 

"advertisement"

in relation to any tobacco product-

a) means any commercial communication or action brought to the attention of any member of the public in any manner with the aim, effect or likely effect of—
i) promoting the sale or use of any tobacco product, tobacco product brand element or tobacco manufacturer's name in relation to a tobacco product; or
ii) being regarded as a recommendation of a tobacco product;
b) includes product placement; and
c) excludes commercial communication between a tobacco manufacture or importer and its trade partners, business partners, employees and share holders and any communications required by law,

and "advertise" has a corresponding meaning;

 

"brand element"

includes the brand name, trade mark, trade name, distinguishing guise, logo, graphic arrangement, design, slogan, symbol, motto, selling message, print, typeface, recognisable colour or pattern of colours, or any other symbol of product identification, that is likely to be taken as or confused with any brand of tobacco product designed to promote tobacco use;

 

"composition"

means the content, arrangement or combination of substances included in the processing and manufacture of a tobacco product;

 

"Constitution"

means the Constitution of the Republic of South Africa, 1996 (Act No, 108 of 1996);

 

"Constituent"

in relation to any tobacco product, means nicotine, tar and any other constituent of a tobacco product or of tobacco smoke which the Minister may by notice in the Gazette declare to be a constituent for the purposes of this Act;

 

"Director-General"

means the Director-General: Health;

 

"emission"

means any substance that is produced when a tobacco product is used;

 

"employed" or "employment"

means employed or employment as an employee as defined in section 1 of the Basic Conditions of Employment Act, 1997 (Act No, 75 of 1997);

 

"importer"

means any person who brings, or attempts to bring, a tobacco product into the Republic for the purposes of selling that product, and 'import' has a corresponding meaning;

 

"ingredient"

means any product component, material used to manufacture such component, residual substance from agricultural practices, storage and processing and substances that can migrate from packing into the product;

 

"local authority"

means any institution or body established by or under any law with a view to performing local government functions in respect of a particular area or region;

 

"manufacturer"

where the manufacturer is—

a) a company, includes its holding company or any subsidiary and any subsidiary of its holding company;
b) an entity other than a company, includes an entity that controls or is controlled by such manufacturer or that is controlled by the same entity that controls such manufacturer;

 

"Minister"

means the Minister of Health;

 

"nicotine"

means nicotine alkaloids;

 

"officer"

means an officer in the Department of Health;

 

"organised activity"
a) means any activity or event-
i) which any member of the public attends or in which he or she participates;
ii) which is organised for the purposes of entertainment, sport or recreation or for educational or cultural purposes; and
iii) where a tobacco product, or brand name, trade mark, logo or company name in relation to a tobacco product, is used in the name of or portrayal of the activity or event to promote tobacco use; but
b) excludes any event arranged by a manufacturer, importer, distributor or retailer of a tobacco product where only its shareholders or its employees or their spouses or partners attend;

 

"package"

means the container, receptacle or wrapper in which tobacco products are sold, supplied or distributed at wholesale or at retail;

 

"prescribe"

means prescribe by regulation under this Act;

 

"private dwelling"

means any part of-

a) any room or apartment of a building or structure which is occupied as a residence; or
b) any building or structure or outdoor living area which is accessory to, and used wholly or principally for, residential purposes;

 

"product placement"

means the depiction of, or reference to, a tobacco product or brand element in a broadcast programme, film, video recording, telecast or other electronic medium for which the producer, or any other person associated with the broadcast programme, film, video recording, telecast or other electronic medium, receives payment in cash or otherwise;

 

"promotion"

is the practice of fostering awareness of and positive attitudes towards a tobacco product, brand element or manufacturer for the purposes of selling the tobacco product or encouraging tobacco use, through various means, including direct advertisement, incentives, free distribution, entertainment, organised activities, marketing of brand elements by means of related events and products through any public medium of communication including cinematographic film, television production, radio production or the internet, and 'promote' has a corresponding meaning;

 

"public conveyance"

includes transporting people by means of any commercial or chartered aircraft, ship, boat, train, bus, mini-bus or taxi;

 

"public place"

means any indoor, enclosed or partially enclosed area which is open to the public, and includes a workplace and a public conveyance;

 

"smoke"

means to inhale, exhale, hold or otherwise have control over any ignited tobacco product, weed or plant, and "smoked" and "smoking" have corresponding meanings;

 

"tar"

means the anhydrous and nicotine-free condensate of the smoke of a tobacco product;

 

"this Act"

includes a regulation made under this Act;

 

"tobacco product"

means 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;

 

"trade mark"

includes-

i) any mark whether registered or registrable for trade purposes or any recognised version thereof that is likely to be taken as, or confused with, that trade mark;
ii) certification trade mark or collective trade mark; and
iii) ‘trade mark’ as defined in section 1 of the Trade Marks Act, 1993 (Act No, 194 of 1993); and

 

"workplace"
a) means any indoor, enclosed or partially enclosed area in which employees perform the duties of their employment; and
b) includes any corridor, lobby, stairwell, elevator, cafeteria, washroom or other common area frequented by such employees during the course of their employment; but
c) excludes any private dwelling, and any portion of an area mentioned in paragraph (a) specifically designated by the employer as a smoking area and which complies with the prescribed requirements.