"Smoking and other uses of tobacco constitute the main preventable cause of premature death and disability, and the purpose of legislation is to prevent and reduce the burden of illness, early mortality and morbidity, and human suffering caused by the use of tobacco."

Ruth Romer

As countries come alive to the grave dangers posed by tobacco to the health of their citizens, their environments, and their economies, calls for action by way of legislation grows. The abundance of science on the effects of tobacco on the human body now leaves little room for doubt on the issue. After years of denial, even the tobacco companies are now beginning to make some admissions on this front.

The initiation by the World Health Organization of the Framework Convention on Tobacco Control signals to the world that the time for action against tobacco is now. The negotiation process has forced countries to face up to the dangers of tobacco and examine their commitment to the health of their citizens.

The passing of national legislation is one mechanism by which a country can act to curb the tobacco epidemic. However the enactment of legislation is not the end of the story. Tobacco is more than a health issue. Very often it escalates into the political plane, for behind it lies a multi-billion dollar industry. This makes all the difference. Mosquitoes don't pay taxes and don't present the same formidable opponents to control of malaria that tobacco companies pose to tobacco control.

This paper will examine the key essentials in tobacco control legislation and will also explore what measures need to be taken to ensure effectiveness of such legislation.

2.0 What should be in legislation?

Legislation is the crystallization of policy. It gives legal expression to the formulations, intentions and desires of a government as expressed in policy documents. It signals recognition by the government of a problem and demonstrates commitment by the government to solving it.

Good tobacco control legislation must be rooted in a good policy. It is pertinent to set out our concept of tobacco control. We understand it to mean that those who choose to smoke should be fully informed of the risks and should not be misled by advertising, those who choose not to smoke should be protected from the dangers of second hand smoke, those who wish to quit are supported and that our environment should be protected. Embedded in the concept of the various protections are not only reactive measures to curb industry practices but also proactive measures including holding the industry responsible for its misdeeds.

Ruth Romer in her book fittingly titled "Legislative Action to Combat the World Tobacco Epidemic" lists down specific purposes of legislation;

· to control the growth, manufacture, promotion, and sale of tobacco and tobacco products;
· to create an atmosphere in which non-smoking is the accepted social norm;
· to promote the development of a public attitude that the use of tobacco is dangerous, unhealthy and socially unacceptable;
· to dissuade young people from beginning to smoke and to permit children to grow up free from enticements to smoke;
· to protect the health of non-smokers and their right to breathe clean air; and at the same time to decrease the opportunities for smokers to smoke;
· to encourage all smokers to stop smoking, particularly high-priority groups, including young people, women (particularly pregnant women), parents of young children, people with medical problems, workers exposed to industrial hazards, and those in occupations where responsibility has to be taken for the lives of others (e.g airline pilots, transport workers) or in occupations that serve as models for others (e.g health service personnel and teachers)
· to provide the authorization, impetus and resources for comprehensive tobacco-control campaigns.

She proceeds to categorize legislative measures into two main types;

a) legislation leading to changes in practice among those engaged in the manufacture, promotion and sale of cigarettes; supply side measures including control of advertising, sponsorship and promotion, health warnings, control of harmful substances, restrictions on sales to adults, economic strategies;

b) legislation leading to changes in practice among smokers; demand side measures including, tax and price, control of smoking in public places and work places, prevention of young people from smoking, health education

Over 70 countries in the world have one form of legislation or another. There is a lot of experience to draw from. Late starts sometimes have advantages. In a manner of speaking, one need not re-invent the wheel. The slow process of experimentation, of trial and error, need not delay us. Those that have gone before have blazed the trail. Their experiences show to us what to follow, what works and what doesn't. The challenge is now for us to put their experiences in our local contexts.

Today, we can take advantage of four rounds of negotiation of the Framework Convention on Tobacco Control. The FCTC is intended to serve as a minimum threshold for measures to combat the tobacco epidemic. With the benefit of world experts and various national inputs, the draft sets out tobacco control measures under various headings. It serves as excellent guidance to us making an inquiry into what should be contained in tobacco control legislation.

We will outline the key components of the proposed measures;

a) price and tax measures to reduce the demand for tobacco;

b) Non-price measures to reduce demand for tobacco; elimination of involuntary exposure to tobacco smoke, regulation of the contents of tobacco products, ingredient disclosures, packaging and labeling, education and awareness;

c) Advertising, promotion and sponsorship bans;

d) Treatment and cessation for tobacco dependence;

e) Measures related to the supply of tobacco; curbing illicit trade in tobacco products, elimination of supply by and sales to young persons, minimum packet content, licensing of tobacco manufacturers, distributors, importers and retailers,

f) Compensation and liability;

g) Treaty mechanisms

True these issues are still under negotiation and it is too early to say what shape or form the final clauses will take. What is pertinent to us is to take our cue from the tobacco control issues identified to be the basis for negotiation in the development of the FCTC.

Judging by the FCTC or the parameters set by Ruth Romer evidently Botswana has done well. The draft legislation is an improvement from the control of Smoking Act of 1992. While the focus of the 1992 Act was on the protection of non-smokers and banning of advertising, the new draft Bill now encompasses a comprehensive regime of both supply and demand side measures.

Clearly a lot of effort has been put in this Bill and it has paid off. Coming from the outside, it is not easy to tell what aspects of the Bill are borne of your country experience and what parts of it are learnt from other countries. Suffice to say that upon a first reading of the draft my reaction was "impossible". It was only after learning that there were no local tobacco companies that I could understand the very strong positions in the Bill. Then I said yes! Lets do it.

While there is room for some language tightening in the Bill it is evident that it contains all the hallmarks of effective legislation. Some key policy measures that would be recommended;

a) taxation of tobacco products; this entails raising taxes at least at the rate of growth in incomes so that tobacco products do not become affordable overtime. Tax policies are one of the most effective measures in tobacco control. Increases in taxation of tobacco products result in more revenue to the Government while at the same time reducing consumption. It enables the Governments to raise revenue and protect their populations.

While this is usually the province of separate legislation, it would be prudent to make reference to it by way of empowering the tobacco regulator to at least make recommendations on the taxation rates for consideration in the national budget.

b) role of civil society organizations; civil society organizations (CSOs) have a great role to play in this era of shrinking government. Often CSOs extend to areas where the Government lacks either resources or will at all to reach and even within the reach of the Government, CSOs can act as an effective watchdog and pressure group keeping tabs on the processes of implementation of the law.

Recognition should be given to the role of CSOs in the legislation. Provision should be made for co-operation with CSOs and they should be allowed access to funding from the regulator for their activities.

c) focus on research based methods; The best methods of tobacco control are those that have been proven by research or experience elsewhere to work. In this regard, mention is to be made of youth based approaches in tobacco control. Too strong a focus on youth prevention measures may produce the opposite result with this age group. The tobacco companies have marketed their products to the youth as a symbol of independence and rebellion against authority figures. Very strong measures targeted at the youth may provoke rebellion and thus drive the youth into the arms of the tobacco companies.

That this is one of the measures that the tobacco industry supports is a further ground to make these measures suspect. The industry is only motivated by one thing; profit. If it agrees with any measure of tobacco control it is because they have already found a way round it or because they believe it to be ineffective.

Caution is therefore necessary in prescribing measures that are solely targeted at the youth. We must remember that the other measures like warning labels, restrictions on places of sale, advertising bans, information & awareness campaigns will reach the youth anyway.

d) ban duty free sales; the draft has wide provisions on anti smuggling measures but this would not be complete without a ban on duty free sales of tobacco products.

Duty free cigarettes often end up as smuggled products. There is no justification in the Government losing revenue by allowing the top notch of its citizens or residents to purchase such a dangerous product free of tax. Duty free cigarettes heighten the profile of the product, and may defeat advertising bans.

e) access to the courts; rights are only as effective as the mechanisms for enforcement. In countries with poor literacy levels or poor awareness levels for technical issues like tobacco control, there is merit in liberalizing "locus standi" to allow enforcement of rights by CSOs. Public interest litigation has proved itself as invaluable in promoting the rights. To facilitate PIL, filing fees and rules on costs of litigation also have to be relaxed.

In Uganda public interest litigation has advanced the cause of protection of non-smokers from exposure t second hand smoke. On May 31st 2001, TEAN filed a suit against the Attorney General and the National Environment Management Authority seeking declarations that smoking in public was a violation of non-smokers rights to life and to a clean and healthy environment. The suit is till pending and despite a lot of interference by the local BAT company, prospects of a good result are bright. The National Environment Management Authority has commissioned a consultant's study into the issue and has constituted a working group to develop regulations to protect non-smokers.

We would also like to suggest that if the opportunity arises for constitutional reform, that some of the core rights be enshrined in your constitution, if not already there, such as the right to a clean and healthy environment and PIL.

3.0 Implementation issues

What I would like to discuss here are red flag issues; potential pitfalls in legislation and in approaches that may affect the efficacy of the Bill.

a) regulatory framework; tobacco control is a continuous process and it is necessary to have a specific body outside the ordinary Government machinery to oversee the process.

Institutions are very often only as good as the people who man them. Bad laws may hamper good people, just as bad people may abuse their positions. It is necessary that attention is paid to the provisions attendant to the creation of a regulator.

Key among these are the provisions relating to funding and to the independence of the regulator. Is the regulator a separate legal entity? How are the officers appointed and by whom? What are the criteria for appointment? Are there conflict of interest provisions? How do you guard against industry capture? Is the body free from political or industry interference? Do the officers have security of tenure? How big is the decision making body?
How is the body to be funded? Can it sustain it self? The best-designed regulator still needs funding to operate and constraints on this funding may eat into the well-crafted provisions and undermine the independence of the regulator.

Organizational supremacy? Is the regulator the recognized apex body on tobacco control issues? Territorial and organizational feuds can often paralyze an organization, and the public health issues may well slip into the feuding cracks.

b) level of detail; a balance has to be struck between the level of detail in the body of the statute and what has to be relegated to the schedule. A detailed statute may constrain the ability of the regulator to respond to issues. Appropriate detail in the schedule allows the regulator flexibility to respond. Regulation is after all a process of abuse and reaction to abuse.

d) development process; the process of development of legislation is as important as the content of the legislation itself. A wide consultation and debate process allows for greater understanding and internalization of the legislation and thus makes for an easier enforcement load.

This meeting demonstrates that wide consultation is taking place. I however note that it is stated to be the final one. Hope that there will be some extensions and that there will be awareness campaigns even after the Bill is passed.

The awareness campaigns will help spread the message to place that the law may be difficult to enforce. While we may protect non-smokers in public places, what happens to the spouses and children in the homes of smokers.

e) plain language drafting; what we seek to achieve in legislation is first compliance with the laws then in default of that enforcement. The law seeks to obligate certain behaviour not to fill our jails. Compliance is enhanced is the laws are written in a manner that they can be understood. A participatory development process coupled with simple language in the law enhances compliance and reduces the costs of enforcement;

f) enforcement; the law must have an effective sanction, if all else fails. The penalty must be a sufficient deterrent.

g) cessation interventions; after you hit a smoker with ugly warning signs, expensive cigarettes, lack of space and he is ready to quit, there should be assistance for him to do so

4.0 Other issues;

a) the FCTC; Botswana is fortunate to be engaged in this process at the same time that the world is engaged in negotiations on the FCTC. Full advantage has to be taken of this process. Awareness of the tobacco control issues could be built around the global and parallel national efforts.

Further close tabs have to be kept to keep in touch with developments on the FCTC. Intended, as it is to act as a minimum floor for tobacco control measures, mirroring the FCTC provisions in national legislation, as a minimum will avoid need for amendments should this Bill be passed before the FCTC is ratified.

b) regional and sub-regional co-operation and co-ordination; tobacco control spans national borders. Many of the ills being guarded against such as advertising and smuggling cannot be controlled by national measures alone.

Aside from the FCTC, opportunities for regional and sub-regional co-operation and co-ordination need to be sought and fostered.

c) awareness of tobacco industry efforts to sabotage the Bill; South Africa took ten years to pass its recent tobacco control laws. Uganda, Tanzania and Kenya all have draft legislation stalled at various stages. Often the powerful hand of the tobacco industry is at play behind the scenes dragging down the process.

While perhaps not a key issue for Botswana, it is nonetheless important to bear in mind the simple laws of physics and of history. For very reaction there is an equal and opposite reaction. For every revolution, there is a counter-revolution. It must be resisted and crushed, even in tobacco control!

5.0 Conclusions

Botswana's efforts in developing tobacco control legislation deserve commendation and emulation by those countries that have not embarked on this path. As one of the leaders in the field, Botswana serves as a beacon to those that attempt to follow this path. It must remain firm and unwavering in its efforts to prioritarise and protect the health of the public. To borrow an expression, "it profits us nothing to gain the world and lose our health"

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