H/T tobacco investment analyst Rae Maile for bringing this to my attention.
As some of you may remember there was a temporary ban on cigarette sales in South Africa during the initial outbreak of Covid.
According to a May 2020 BBC report (Coronavirus in South Africa: Smokers fume at cigarette ban):
The government justified the tobacco ban on health grounds based on advice from its own medical experts as well as from the World Health Organization (WHO).
The WHO said that although research is still being carried out, there was reason to believe that smokers would be more adversely affected than non-smokers if they contracted Covid-19.
The 'unprecedented' ban – which initially included the sale of alcohol as well – was eventually lifted on August 17, almost six months after it was introduced and it's fair to say it wasn't a success.
According to the Financial Times (Illicit trade thrives as South Africa bans alcohol and tobacco sales):
Legitimate drinks and tobacco players took an instant economic hit as their customers turned to illegal supplies ...
“Nobody expected the ban to go on for 20 weeks,” says Corné van Walbeek, a professor at the University of Cape Town and an expert on the economics of tobacco control. “It became a farce. Everybody knew that people were buying illicitly.”
Inevitably the matter ended up in the courts and the Supreme Court of Appeal of South Africa has now confirmed a previous ruling by the Western Cape High Court that found the ban was 'unnecessary and unconstitutional'.
You won't find this in ASH Daily News (a daily e-bulletin that omits/censors anything remotely off message) but according to News 24 ('Govt was wrong to ban tobacco products during lockdown, SCA confirms'):
"There was no scientific justification for the continued ban on the sale of tobacco products: there is no evidence that short-term quitting has clinical significance for Covid-19 severity and outcomes," the court ruled.
That's the story in a nutshell but it's worth posting some extracts from the summary issued yesterday by the SCA 'for the benefit of the media':
The Supreme Court of Appeal (SCA) today dismissed an appeal by the Minister of Cooperative Governance and Traditional Affairs (the Minister) against an order of the Western Cape Division of the High Court, Cape Town (high court). The high court made an order declaring that a regulation made during the national state of disaster, which provided that '[t]he sale of tobacco, tobacco products, e-cigarettes and related products is prohibited, except for export' (Regulation 45), was unconstitutional and invalid ...
In the SCA, the Minister contended that the reason for Regulation 45 were to protect human life and health and reduce the potential strain on the health system, and that the medical evidence at the relevant tine showed that the use of tobacco products increased the risk of developing a more severe form of Covid-19 ... The Minister argued that smokers with Covid-19 had higher ICU admission rates, a higher need for ventilators and a higher mortality rate than non-smokers. In order to establish this, the SCA held that the Minister was required to show that: (i) smoking led to a more severe Covid-19 disease progression; (ii) that a temporary ban on the sale of tobacco products during lockdown would reverse or lessen that disease progression; (iii) that Regulation 45 was effective in materially reducing the number of smokers; and (iv) that such reduction in smoking would have led to a reduced ICU bed occupancy which would enable the health system to cope with Covid-19 admissions. The SCA concluded that the Minister failed to do so [my emphasis].
The SCA held that the scientific evidence as to whether smoking increased Covid-19 disease progression was mixed and inconclusive. The statements by the World Health Organisation, on which the Minister relied, do not support the Minister's justification for the ban on the sale of cigarettes [my emphasis]. There is no evidence that quitting smoking in the short-term has clinical significance for Covid-19 severity and outcomes ... The claim that smoking increased the behavioural risks associated with Covid-19, because smokers share lit cigarettes and do not observe social distancing measures, was also not established ...
The SCA consequently held that the limitation of the rights to dignity, bodily and psychological integrity, freedom of trade and deprivation of property was not justified in terms of s 36 of the Constitution. Regulation 45 unjustifiably lifted the autonomy of persons to regulate their own affairs, and to exercise control of their bodily and psychological integrity.
To sum up: prohibition didn't work, there was no justification on Covid grounds for banning the sale of tobacco, and outlawing the sale of tobacco 'unjustifiably' stopped people regulating their own affairs and exercising control of their own bodies.
I think we can agree that's a pretty conclusive defeat for the South African Government, the World Health Organisation, the tobacco control industry and prohibitionists everywhere.
Back to the drawing board, folks!
See 'Minister of Cooperative Governance and Another v British American Tobacco South Africa (Pty) Ltd and Others (case no 309/21) [2022] ZASCA 89'.