Judin Combrinck Inc.
Home     About Us     Expertise     Articles     Contact Us

Articles

At Judin Combrinck Inc., we strive to keep abreast of the latest legislation, business trends and topical issues. Read the latest news, views and opinions from our law firms accomplished team of lawyers.

2014 Articles

Why Simply Having Basic Cyber Risks Insurance May Not Be Enough

11 August 2014 - In a news story that will send a chill through almost every business that holds customer data, it was reported last month that cyber criminals had stolen the data of more than 600,000 Dominos Pizza customers in Belgium and France. An anonymous Twitter user threatened to publish the data unless the company paid a cash ransom.

 

E-Cigarettes in the Workplace

27 January 2013 – Issues relating to E-Cigarettes in the workplace are dealt with in an article by solicitor Bond Dickenson of an English law firm. Dickenson writes, “We look at the issue of e-cigarettes and how employers should tackle the rise in their use. Specifically we ask whether they should be allowed in the workplace and what employers should consider when drawing up a policy."

Warning of More Cyber Attacks

23 January 2013 - the Chicago Tribune reports that the FBI has warned US retailers to prepare for more cyber-attacks after discovering about 20 hacking cases in the past year that involved the same kind of malicious software used against Target Corporation of the US in the holiday shopping season just passed.

The Importance of a Bring Your Own Device (BYOD) Policy

21 January 2014 - In his excellent article Lessons from Naked Pictures Michael Schmidt writes as follows:

“Sometimes you can find great employment law lessons in the craziest places and lawsuits, and even non-employment law lawsuits. This month, a decision was issued by a Family Court Judge in Brooklyn, New York that, while an apparent nightmare for the family involved, could nevertheless breed some worthwhile takeaways for you and your company as we near the year end.

Where there’s smoke …?

20 January 2014 - Is an electronic cigarette a tobacco product or a remedial medical product? Does this artificial smoke-free device lessen the stigma of smoking? Are e-cigarettes properly controlled? How does it influence the way tobacco is promoted in the media? Irshad Motala takes a penetrating look at the controversial issue of the regulation and promotion of electronic cigarettes in South Africa.

Is an electronic cigarette a tobacco product or a remedial medical product? Does this artificial smoke-free device lessen the stigma of smoking? Are e-cigarettes properly controlled? How does it influence the way tobacco is promoted in the media? Irshad Motala takes a penetrating look at the controversial issue of the regulation and promotion of electronic cigarettes in South Africa.

INTRODUCTION

In this matter, the author has been asked to discuss and analyse whether electronic cigarettes are regulated in South Africa presently.

The author has reviewed various sources, as set out below.

THE TOBACCO PRODUCTS CONTROL ACT

The Tobacco Products Control Act 83 of 1993 (the Act) likely does not apply to electronic cigarettes because it only regulates “tobacco products”.

The words “tobacco product” is defined to mean “a product containing tobacco that is intended for human consumption, and includes, but is not limited to, any device, pipe, water pipe, papers, tubes, filters, portion pouches or similar objects manufactured for use in the consumption of tobacco”.

Therefore, the product must contain tobacco before it falls within the aforementioned definition. In the case of electronic cigarettes, they do not contain tobacco, and therefore do not fall within the ambit of the aforementioned definition.

However, section 3(1)(a) of the Act provides that “No person shall advertise or promote, or cause any other person to advertise or promote, a tobacco product through any direct or indirect means, including through sponsorship of any organisation, event, service, physical establishment, programme, project, bursary, scholarship or any other method.”

The words “advertisement” and “advertise” “in relation to any tobacco product-

(a) means any commercial communication or action brought to the attention of any member of the public in any manner with the aim, effect or likely effect of-

(i) promoting the sale or use of any tobacco product, tobacco product brand element or tobacco manufacturer's name in relation to a tobacco product; or

(ii) being regarded as a recommendation of a tobacco product;

(b) includes product placement; and

(c) excludes commercial communication between a tobacco manufacture or importer and its trade partners, business partners, employees and share holders and any communications required by law,

and 'advertise' has a corresponding meaning”

The word “promotion” in turn “is the practice of fostering awareness of and positive attitudes towards a tobacco product, brand element or manufacturer for the purposes of selling the tobacco product or encouraging tobacco use, through various means, including direct advertisement, incentives, free distribution, entertainment, organised activities, marketing of brand elements by means of related events and products through any public medium of communication including cinematographic film, television production, radio production or the internet, and 'promote' has a corresponding meaning”.

An argument could be made that users of e-cigarettes are likely to (a) find the use of tobacco products to be acceptable, and (b) by advertising electronic cigarettes, the stigma associated with tobacco products is lessened, and therefore, advertising of electronic cigarettes has the “likely effect” of promoting the sale or use of tobacco products, or alternatively, fostering a positive attitude towards tobacco products.

Of course, this argument has not been tested to date, and it must be borne in mind that the aforementioned provisions must be interpreted restrictively. In this regard, any legislation which creates criminal or administrative penalties requires a restrictive interpretation.

(Oilwell (Pty) Ltd v Protec International Ltd and Others (2011 (4) SA 394 (SCA)) [2011] ZASCA 29; 295/10 (18 March 2011) at para 11).

The author therefore believes that absent clear evidence that a positive attitudes towards tobacco product or the promotion of the sale and use of tobacco products is caused by the advertising and promotion of electronic cigarettes, the provisions of the Act do not apply.

GENERAL ADVERTISING REGULATION

The Advertising Standards Authority (ASA) code of conduct may prohibit some of the representations made by the distributors of electronic cigarettes.

For example, Part 23 of section 3 of the Code provides:

“Smoking deterrents

No advertisements will be accepted for any smoking deterrent unless the advertiser makes clear that the product offers only assistance and not a cure, and that its success will be dependent upon the willpower of the user.”

In addition, there is a duty on the advertiser to substantiate any claim made in an advertisement. Part 4.1.1 of section 2 of the Code provides:

“Before advertising is published, advertisers shall hold in their possession documentary evidence as set out in Clause 4.1, to support all claims, whether direct or implied, that are capable of objective substantiation.”

It therefore follows that in situations where electronic cigarettes are promoted as a safer alternative to tobacco products, and furthermore, as a means to stop smoking, the following should be considered:

The advertiser must make it clear that it is merely assistance, and that the willpower of the user is crucial; and

The advertiser must also be in possession of documentary evidence to actually substantiate the fact that the electronic cigarette is safer and helps persons stop using tobacco products.

In D Beelders v. Smokestik SA CC, (Case No: 15322), ruling handed down on 27 July 2010, a complaint was made against an electronic cigarette distributor on the basis that the aforementioned provisions of the code had been contravened. However, the distributor agreed to withdraw its advertising and the matter was resolved in this manner.

Moreover, the Consumer Protection Act 68 of 2008 (CPA) would also probably require that the claims of manufacturers of electronic cigarettes be substantiated, failing which there advertising will be unlawful.

In this regard, section 41 of the CPA prohibits “False, misleading or deceptive representations”, including cases where suppliers “use exaggeration, innuendo or ambiguity as to a material fact, or fail to disclose a material fact if that failure amounts to a deception”, and furthermore, alleging that products “have ingredients, performance characteristics, accessories, uses, benefits, qualities, sponsorship or approval that they do not have”.

More importantly, section 61 of the CPA makes “the producer or importer, distributor or retailer of any goods is liable for any harm” caused wholly or partially by any product they sell or distribute, including the failure to provide adequate warnings or hazards associated with the goods. The provision also provides that liability attaches regardless of negligence. The “harm” envisaged by the section includes “an illness of any natural person”.

In light of the above, to the extent that the claims of the manufacturers of electronic cigarettes cannot be substantiated, the aforementioned regulatory framework applies. In addition, if it is factually proven that use of electronic cigarettes is hazardous, the failure to warn in relation to such hazards may be a further ground of liability to the supplier of electronic cigarettes.

MEDICINE CONTROL REGULATION

In 2009, the South African Pharmacy Council resolved that it would not endorse the sale of e-cigarettes and referred the matter to the Medicines Control Council (MCC) to determine whether the sale of electronic cigarettes is regulated under medicine control.

(Council Resolutions July 2009: E-Cigarettes. Pharmacia Dec 2009, 17(3):8).

In this regard, a number of changes to the schedules of the Medicines and Related Substances Act, 101 of 1965 (MRA) were recently published by the Minister of Health and are effective immediately.

As has been noted in the Medical Chronicle, May 2012:

“According to Lorraine Osman, head: public affairs at the Pharmaceutical Society of SA (PSSA), all prescribers and suppliers of medicines need to be aware of the changes and the implications for both consumers and healthcare professionals.

Scheduling status of nicotine

“In cases where a substance appears in more than one schedule, the default schedule for the substance is the highest schedule in which it is listed,” explained Osmond. All entries of the same substance in lower schedules indicate an exception to the default schedule. To illustrate this point, the scheduling status of nicotine becomes easier to understand if read from Schedule (S) 3 to S1.

S3 states that nicotine, when intended for human medicinal use as an aid to smoking cessation or as a substitute for a tobacco product (as defined in the Tobacco Products Control Act, 1993, as amended), is an S3 substance, except when registered and presented as nicotine gum or lozenges (S0, S2), metered sprays containing 1mg per dose or less (S2), nicotine transdermal patches for continuous application to the skin (S1, S2), oral solid dosage forms containing 2mg or less (S2) or as inhalers containing 10mg or less per cartridge (S2).

“In other words, nicotine is an S3 substance if it is intended as an aid to smoking or as a substitution for a tobacco product,” she said. Exceptions are however made for products that comply with the requirements for sale in a pharmacy as S1 or 2 substances, and for those that may be sold as S0 products, i.e. in general retail outlets.

“One of the interesting aspects of this change is that there has been a lot of debate about whether or not the electronic cigarette (e-cigarette) is now scheduled and may only be sold on a doctor’s prescription,” noted Osmond.

The Pharmaceutical Society of SA requested the Medicines Control Council (MCC) to clarify the scheduling status of nicotine, with particular respect to so-called e-cigarettes.

The response pointed out that nicotine, when sold as a substitute for a tobacco product, will be classified as an S3 substance, unless the product is registered by the MCC after consideration of its safety, quality and efficacy. All other nicotine-containing e- cigarettes that are used as a tobacco substitute, whether registered with the MCC or not, may therefore be sold only on prescription.”

The MCC has now confirmed that electronic cigarettes are subject to medical scheduling and can only be sold at pharmacies, and therefore, at present, the MRA does appear to regulate the sale of electronic cigarettes.

Prepared by Adv. Irshad Motala of Legal Research Solutions and J. Michael Judin of Goldman Judin Inc.

Irshad may be contacted on

+27 (0) 78 240 7193 or at motala@legalresearchsolutions.co.za

 

Ownership of Business-Related Social Media Accounts

13 January 2014 - In their article under the above title, Anelia Delcheva and Aaron Rubin write as follows:

“Social media platforms have become an increasingly important means for companies to build and manage their brands and to interact with their customers, in many cases eclipsing companies’ traditional “.com” websites. Social media providers typically make their platforms available to users without charge, but companies nevertheless invest significant time and other resources to create and maintain their presences on those providers’ platforms. A company’s social media page or profile and its associated followers, friends and other connections are often considered to be valuable business assets.

But who owns these valuable assets – the company or the individual employee who manages the company’s page or profile? Social media’s inherently interactive nature has created an important role for these individual employees. Such an employee essentially acts as the “voice” of the company and his or her style and personality may be essential to the success and popularity of that company’s social media presence. As a result, the lines between “company brand” and “personal brand” may become blurred over time. And when the company and the individual part ways, that blurring can raise difficult issues, both legal and logistical, regarding the ownership and valuation of business-related social media accounts.

Advisory Boards

13 January 2014 - In her excellent article, Ten Tips to Creating an Effective Advisory Board, Geri Stengel, writes as follows:
“You don’t need to navigate unfamiliar waters alone. Put together a good board of advisers, and you’ll create a powerful asset that can make a huge difference when you need to get objective advice, scout the marketplace, gauge future trends, seek new strategic positions, have introductions made or build repeat customers.


Unlike corporate boards, advisory boards have no fiduciary responsibility and their advice is non-binding. Some are hands-on, meeting monthly or more, even getting involved in the daily grind. Others meet quarterly, with an eye to the big picture. Many consist solely of interested outsiders, but a good number include investors as well. What all such boards share is this: They advise, evaluate and play devil’s advocate. Here are some guidelines to follow when building an effective advisory board.

 

Archived articles:

2016   2014   2013   2012   2011   2010   

Engagement Letter      Terms & Conditions     Privacy Policy     PAIA
E-mail: law@elawnet.co.za
Tel: 011 595 2300
S 26 °05.308' E 28 °05.773'

Wanderers Office Park, Pavillion Building Second Floor,
52 Corlett Drive, Illovo
PO Box 78662 Sandton 2146 Docex 264 Randburg
RealSimple Marketing | StringLite | All rights reserved.