Members concerned at pending smoking regulations
One of FASA's restaurant franchise members, Cattle Baron, sent FASA a query on whether the current Tobacco Control Amendment Bill was set to change (yet again!) later this year to exclude any smoking sections at all in restaurants. Their concern, which is shared by many restaurants and franchisees that have spent vast amounts of money upgrading their outlets to comply with designated smoking sections and costly air extraction systems, is whether there is any point in complying if, in the short term, all such smoking areas will be outlawed anyway.
Ian Jacobsberg, FASA's Chairman Elect and Director of law firm Routledge Modise Inc., submitted this update:
- There are currently two proposed regulations which have been published in terms of Tobacco Products Control Act No.83 of 1993 ("the Act"), which have yet to be adopted.
- The proposed regulations are:
- Regulations relating to smoking in public places and certain outdoor public places - Government Gazette No. 35198; and
- Regulations relating to the display of tobacco products at wholesale and retail - Government Gazette No. 35603.
- The aforementioned regulations were posted in the Government Gazette for public comment, however, the time period for comment has since expired. Accordingly, the Department of Health is currently in the process of considering the comments received on the proposed regulations but has yet to enact them.
- For the purposes of Cattle Barons' query the only relevant regulation is in relation to Government Gazette No. 35198.
REGULATIONS RELATING TO SMOKING IN PUBLIC PLACES AND CERTAIN OUTDOOR PUBLIC PLACES - GOVERNMENT GAZETTE NO. 35198 ("RR 1")
- The purpose of the proposed regulations is to regulate the smoking of tobacco products in certain public places and outdoor public places as evidenced by the title of the regulation. Regulation 2(1) sets out a blanket ban on smoking in public areas and states simply:
"No person may smoke in public places"
- Regulation 2(2) proposes specific outdoor public places in which persons are to be prohibited from smoking. The proposed areas are:
- stadiums, arenas, sports facilities, playgrounds, zoos;
- premises of schools, or child care facilities;
- health facilities;
- outdoor eating or drinking areas;
- venues when outdoor events take place;
- covered walkways and covered parking areas;
- service areas and service lines; and
- beaches where public bathing is permitted, not less than 50 metres away from the closest person near the demarcated swimming area.
- Notwithstanding the provisions of sub-regulation (2), sub-regulation (3) states that a person in control of a public place may designate smoking areas, subject to the proviso that:
No person shall smoke any tobacco product within a 10 metre distance from a window of, ventilation inlet of, doorway to or entrance into a public place
- The owner of or person in control of a public place, or employer in respect of a workplace shall ensure that no person smokes in violation of the provisions of these regulations. Furthermore, such persons shall be required to display "No smoking" signs at appropriate area's to ensure that the public/employees are aware that smoking is prohibited.
- Regulation 3(4) states the sign shall:
- have a white background and a graphic of a no smoking symbol consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it and shall be at least 14 cm in diameter; and
- carry the warning: "ANY PERSON WHO FAILS TO COMPLY WITH THIS NOTICE SHALL BE PROSECUTED AND MAY BE LIABLE TO A FINE." written in black letters, at least 2 cm in height and 1,5 cm in breadth, on a white background.
- In relation to the abovementioned regulation, the same applies to outdoor public places, in other words, the owner or person in control of a public place or employer in respect of a workplace may designate part of an outdoor area of the premises as an area in which smoking is permitted.
- Furthermore, the aforementioned area must display a notice at the area stating:
- the area is a designated outdoor smoking area; and
- no person under 18 years old may be present in the area.
- Designated smoking areas are not to be adjacent to any entrance to the premises and are to be in a position that minimises smoke from the area entering the area where smoking is prohibited.
- The owner or person in control of a public place or employer in respect of a workplace of premises at which there is a designated outdoor smoking area shall ensure that, in the designated outdoor smoking area -
- no person under the age of 18 years is present;
- no food or refreshment is served;
- no entertainment is provided;
- ashtrays are installed and the area regularly cleaned; and
- smokers are discouraged from remaining in the area longer than is necessary to smoke a cigarette.