Tuesday, 19 March, 2024
HomeHarm ReductionTobacco product ban – Legal rationality is not policy rationality

Tobacco product ban – Legal rationality is not policy rationality

On 26 June, the North Gauteng High Court dismissed a challenge to the ban on the domestic sale of tobacco and related products. The court found the ban sufficiently rational. But there is overwhelming evidence that prohibiting trade in any recreational drug makes its use more dangerous, undermines human rights and dignity, and fuels corruption and organised crime.

The South African Drug Policy Initiative issued the following statement in response:

Over the past few weeks there have been two challenges to the South African government’s banning of tobacco sales during the lockdown period. One by the Fair Trade Independent Tobacco Association (FITA) and the other by British American Tobacco. On 26 June, the North Gauteng High Court dismissed FITA’s challenge to the ban on the domestic sale of tobacco products, e-cigarettes and related products.

The court found that the ban, which was among the measures introduced to combat and contain the harms of the COVID-19 pandemic, was sufficiently rational as not to breach the principle of legality.

The South African Drug Policy Initiative (SADPI) – an NGO that advocates for drug-related policies that are humane and rational – provided an expert witness and supportive evidence in favour of FITA’s case.

In view of the court’s ruling we at SADPI wish to emphasise that the basis of legal rationality evaluated by the court is a narrowly defined minimum threshold for government decision-making. And is a far lower standard than should be required in policy decisions that affect the lives, livelihoods and liberty of individuals within a constitutional democracy.

The court’s emphasis on legal rationality contrasts substantially with the scientific approach to the issue that FITA’s medical experts took to explain their reasoning to the court. Inter alia, before implementing any public health policies, the authorities are obliged to consider both the potential benefits versus the countervailing risks and costs of those policies.

FITA’s medical experts pointed out that neither of these assessments was carried out and provided evidence to show how the harms and costs of the banning far outweighed any of its purported benefits.

Unfortunately for the South African public and its economy, the court did not consider the scientific evidence to be as important as the argument around legal rationality. The court’s approach can be explained by appreciating that judicial authority is limited by the doctrine of the separation of powers. Courts may determine whether there exists a reasonable connection between an executive decision and its legitimate purpose – not whether the decision is appropriate or not.

They may also determine whether a decision’s violation of constitutional rights is justifiable. However, this question, although not raised in the FITA case, was an integral part of the case brought by British American Tobacco.

In spite of the court’s ruling SADPI repeats its previous calls to repeal the ban on the sale of tobacco and related products. However, this is by no means an endorsement of smoking or of tobacco industry interests and practices.

There is no doubt about tobacco’s long-term harms to the physical health of users and that it can cause both physiological and psychological dependence. But simply focussing on tobacco’s harms without considering the countervailing harms and risks of its prohibition is itself irrational.

For there is overwhelming evidence that the prohibition of the trade in any recreational drug not only makes its use more dangerous, it undermines human rights and dignity, while fuelling corruption and organised crime.

Issued by The South African Drug Policy Initiative

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