There is a particular kind of policy failure that is especially difficult to prevent: the kind that looks, at the moment of design, like an act of conscience. South Africa is moving toward one such policy in its proposed Tobacco Products and Electronic Delivery Systems Control Bill.

Included among its sweeping provisions is a requirement for standardised plain packaging across all tobacco products. The intention is to deter smoking; the question that deserves more serious attention is what else it may deter, and what it may inadvertently encourage.

Revived under the new administration and advancing through Parliament following public consultations in late 2025, the Bill introduces mandatory plain packaging with graphic health warnings, a total ban on product display at points of sale, strict controls on electronic nicotine delivery systems, and a prohibition on online tobacco retail.

The Department of Health frames this as bringing South Africa in line with World Health Organisation standards and protecting vulnerable groups, particularly the young, from tobacco uptake. On its own terms, the public health rationale is coherent. The disagreement is not about whether that goal is worthy. It is about whether this instrument, in this country, at this moment, is likely to achieve it.

As proof of concept, proponents point to Australia, the first country to introduce standardised tobacco packaging in 2012. Smoking prevalence fell in the years following implementation, and independent studies found no conclusive evidence that plain packaging alone directly caused an immediate spike in illicit tobacco consumption. The public health community considers the Australian experience a vindication.

But the picture is more complicated. More recent research has documented notable increases in illicit tobacco seizures and criminal market activity in Australia, driven significantly by the steep tax increases that accompanied and followed plain-packaging reform. The Australian Parliamentary inquiry into illicit tobacco described the situation as serious enough to warrant new legislative responses. The solution is therefore not simple: plain packaging may not have caused illicit trade to surge on its own, but the broader regulatory tightening of which it formed a part created conditions in which criminal networks found a growing and lucrative market.

South Africa's regulatory environment is categorically different; it does not have Australia's customs infrastructure, enforcement capacity, or institutional integrity.

Real-life Example

South Africa already has a recent and instructive example of what happens when tobacco regulation is enacted without adequate consideration of enforcement realities.

In March 2020, the government banned the sale of tobacco products as part of its COVID-19 lockdown response. The stated rationale was that smoking increased the risk of severe COVID-19 outcomes. What followed exposed two problems simultaneously.

The first was evidential. At the time, the deputy director of the National Institute for Communicable Diseases acknowledged that there was no direct or reliable evidence that smoking increased the chances of contracting COVID-19. Ruling in 2022 on a legal challenge to the ban, the Supreme Court of Appeal found that there was no scientific justification for its continuation, as there was no evidence that short-term quitting had clinical significance for COVID-19 severity and outcomes. The policy was built on an assumption that did not hold.

The second problem was consequential. Research published in peer-reviewed journals found that the ban was largely ineffective at stopping smokers from obtaining cigarettes; it simply redirected them to the illicit market. A University of Cape Town study found that the ban inadvertently benefited manufacturers already disproportionately involved in illicit activities, who increased their market share and retained much of it even after the ban was lifted. The illicit market, which stood at roughly a third of total cigarette consumption before the pandemic, rose to an estimated 54%. The state created a structural problem that it has not yet solved, and is now proposing a further layer of regulation on top of the conditions that problem created.

The government argues that enhanced enforcement powers within the Bill will contain the risks. This is where South Africa's record becomes the most instructive part of the debate. The South African Revenue Service completed limited cigarette seizures over three years valued at R598 million – a figure representing only a fraction of the illegal product in circulation.

South Africa does not yet have a functioning track-and-trace system for tobacco production and attempts by the South African Revenue Service to install monitoring equipment inside manufacturing facilities were legally challenged and blocked. The state relies largely on self-reporting by manufacturers. Plain packaging compounds this by removing the complex proprietary design elements that make legal products difficult to replicate. A standardised brown box is easier to forge than a precision-printed branded pack, and in a market where criminal networks are already well established and enforcement is outmatched, that is not a trivial concern.

Policies designed in Geneva or Canberra do not automatically produce good outcomes in Johannesburg or Limpopo. Good intentions, poorly calibrated to local conditions, have a habit of serving neither the public health goals they were designed to advance nor the broader fiscal and social interests of the country. That is the harder conversation this Bill demands.

Mukundi Budeli is a law graduate from the University of Witwatersrand and an associate of the Free Market Foundation.