A general view of people allegedly buying and selling cigarettes illegally in Johannesburg.
Papi Morake, Gallo Images
- The government has fired back at British American Tobacco South Africa – insisting the cigarette ban is necessary.
- But in the vast volume of detail in court papers, certain contradictions appear to surface.
- Key among them: Research which says smokers are less vulnerable to Covid-19 – this from the government’s own papers.
The government has admitted “smoking populations were less likely to be infected” with the coronavirus and develop Covid-19.
And, in a further apparent inadvertent muddle, government argues cigarette purchasing during lockdown increased inter-personal contact – as compared with ordinary shoppers – without acknowledging its own ban on legal cigarette sales could be to blame.
But government insists tobacco smoking still makes smokers more vulnerable to the pandemic – hence the lockdown on legal sales.
A general view of a street vendor selling cigarettes.
Gallo ImagesJacques Stander/Gallo
These arguments are found in a vast 251-page response by government to a court challenge against its ongoing ban on cigarettes and tobacco products.
British American Tobacco South Africa (BATSA) is set to argue that the regulation invoked to ban the sale of cigarettes is unconstitutional, in the Western Cape High Court next month.
South Africa’s largest cigarette manufacturer says the state’s justification for banning the sale of tobacco products during lockdown is an “exercise in smoke and mirrors” that has produced “few benefits and immense harm”.
Now the government has mounted its defence, in response to BATSA’s court papers.
Explaining the “medical literature on which the respondents (government) rely”, the papers detail government’s insistence that it only relies on evidence proving tobacco-related health risks during the pandemic – and tobacco’s general adverse impact on health.
‘Smoking populations were less likely to be infected’
In one such argument, Paragraph 128 reads: “On 19 February 2020, a paper by Zhang et al, entitled ‘Clinical characteristics of 140 patients infected with SARS-CoV-2 in Wuhan, China’, was published in the European Journal of Allergy and Clinical Immunology.
- “128.1 This is a peer-reviewed journal.
- “128.2 This paper presented clinical characteristics of 140 patients with Covid-19.
- “128.3 The results showed more smokers among the severe than among the non-severe cases. Among severe patients (n=58), 3.4% were current smokers and 6.9% were former smokers. This is in contrast to non-severe patients (n=82) among which 0% were current smokers and 3.7% were former smokers.”
However, by citing this evidence, the government appears to concede that a disproportionately low percentage of smokers suffer severe Covid-19 symptoms.
This is because more than a quarter of people in China smoke – 27.7% – whereas the study cites smokers as only 3.4% of all patients suffering severe illness from Covid-19.
In paragraph 128.4, government argues: “Zhang et al conclude that ‘the outcome of SARS-CoV-2 infection in smokers may be more severe’, even though smoking populations were less likely to be infected.”
This latter admission – that “smoking populations were less likely to be infected” – is likely to be seized upon as proof the government acted irrationally in banning cigarette sales.
In paragraph 130, government argues: “On 9 March 2020, Zhou et al published a paper in Lancet, entitled ‘Clinical Course and Risk Factors for Mortality of Adult Inpatients With Covid-19 in Wuhan, China: A Retrospective Cohort Study’.”
- “130.1 As stated, Lancet is a peer-reviewed journal, and one of the world’s leading medical journals;
- “130.2 The authors studied the epidemiological characteristics of 191 individuals infected with Covid-19;
- “130.3 Among the 191 patients, there were 54 deaths, while 137 survived.
- “130.4 Among those that died, 9% were current smokers. Among survivors, 4% were current smokers.”
The numbers of smokers in these figures again appear to be far lower than the percentage of Chinese people who smoke – just under 30% – thus suggesting smokers may be up to three times less likely to contract the coronavirus.
Purchase of illegal cigarettes ‘increased contact’
In a further argument likely to be seized upon, government presents the following: “176.1 The percentage of participants who came into close contact with someone outside their home, by shaking hands, hugging or kissing, was significantly higher for those who were able to buy cigarettes during lockdown (26.2%) than those who were not (9.8%).”
However, this 26.2% contact refers to illegal cigarette purchasing, which has flourished, according to numerous reports. This would appear to suggest that the purchase of illegal cigarettes by smokers, inadvertently increased contact – as compared with ordinary shopping, if cigarette sales had been legal, amounting to an apparent own-goal in government’s own argument.
And government argues its decision to ban cigarettes and tobacco had consensus in government ranks.
Paragraph 395.3 reads: “The decision to make the regulations was part of a deliberative and consultative process. Consultation with fellow cabinet members, various role players, NATJOINTS, the Health advisory council, the Centre and various organs of state took place. The ultimate decision as to the formulation of disaster management regulations were made by the Minister alone.
“395.4 There is nothing extraordinary about that. The Act provides that the relevant minister makes that decision alone.” – a reference to Nkosazana Dlamini-Zuma, Minister of Cooperative Governance and Traditional Affairs.
In its court papers, BATSA says it will be arguing in court that Regulation 45 of the lockdown regulations is unconstitutional, as it “violates the rights of every participant in the supply chain for tobacco and vaping products”.
In response, the government’s legal response denies every allegation made against it, in the 250-plus responding papers.
Throughout its legal response to the BATSA case, as in paragraph 114.6, government repeats its central thesis that there is “a consistent and considerable body of evidence that smoking is associated with a higher risk of severe Covid-19”.