In June 2017 we made comment here, in respect of the WTO’s decision to uphold legislation in Australia which severely restricted the advertisement of tobacco products on the ground that the legislation qualified as a legitimate public health measure.

We also indicated that we could expect the advent of new legislation in South Africa which would likely follow suit in prescribing stricter requirements for the advertisement of tobacco products.

In a move that brings South Africa a step closer to that reality, the Department of Health has invited public comment on the Draft Control of Tobacco Products and Electronic Delivery Systems Bill, 2018 within 3 months of the invitation date, before 9 August 2018.

The objectives of the proposed legislation are stated as, inter alia, “to regulate the packaging and appearance of tobacco products and electronic delivery systems and to make provision for the standardisation of their packaging.”

The proposed legislation is far reaching as it also seeks to control the advertisement and sale of e-cigarettes (electronic delivery systems), including those that do not contain nicotine.

Aspects of the proposed legislation which will, undoubtedly, attract comment from the public are the overall ban on advertising and sponsorship of- or by- tobacco products and electronic delivery systems and the provisions relating to the standardised packaging and labelling of tobacco products.

The proposed Act specifically requires that Regulations be passed in relation to tobacco products that prescribe:

  • uniform textured and plain colour packaging;
  • the material to be used and the size and shape of the packaging;
  • that logos, branding or other promotional elements on, inside or attached to the packaging of tobacco products or an individual product be prohibited; and
  • that only the brand and product name may appear on packaging in a standard colour and font together with other mandatory information such as health warnings.

The provisions relating to the packaging and labelling of e-cigarettes are currently quite ambiguous, but Regulations may subsequently be passed which change the position.

As previously mentioned, these changes in legislation conflict with the trade mark rights of the tobacco industry, which ordinarily entitle their owners to the use of their registered trade marks, including logo marks, to the exclusion of all others. We are therefore still interested to see whether a court case will be borne of this conflict and continue to watch this space.

Kelly Thompson
Partner | Trade Mark Attorney
Kim Rampersadh
Partner | Trade Mark Attorney
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