House of Commons - Health - Written Evidence

Select Committee on Health Written Evidence

Memorandum by Action on Smoking and Health (ASH) (SP 52)

INTRODUCTION

1. Action on Smoking and Health (ASH) welcomes the Select Committee's investigation into this vitally important public health issue. We would be pleased to provide further written material and to give oral evidence on the issue, at the Committee's discretion. ASH is a charity working on tobacco control policy. Our funding comes mainly from Cancer Research UK, the British Heart Foundation and the Department of Health.

2. This evidence is divided as follows:

— Paragraphs 3 to 4 set out current Government proposals.

— Paragraphs 5 to 13 analyse the current state of public opinion on the issue.

— Paragraphs 14 to 19 look at the economic impact of smokefree legislation.

— Paragraphs 20 to 59 look at the proposed exemption for pubs that do not serve prepared food—looking in turn at health and safety, the regulatory burden and market incentives created by such exemptions, the public health implications, the possible consequences for binge drinking and the human rights and other legal implications of exemptions.

— Paragraphs 60 to 62 look at the proposed exemption for membership clubs.

— Paragraphs 63 to 69 look at possible exemptions for residential premises that are also workplaces.

— Paragraphs 70 to 72 look at other premises which should be smokefree by legislation but are not currently covered by the definition of "enclosed space".

— Paragraphs 73 to 75 look at the proposed definition of smoke and smoking.

CURRENT GOVERNMENT PROPOSALS

3. The public health White Paper, Choosing Health: Making Healthy Choices Easier, published in November 2004, stated that:

"We therefore intend to shift the balance significantly in favour of smokefree environments. Subject to parliamentary timetables, we propose to regulate, with legislation where necessary, in order to ensure that:

— all enclosed public places and workplaces (other than licensed premises which are dealt with below) will be smokefree;

— licensed premises will be treated as follows:

— all restaurants will be smokefree;

— all pubs and bars preparing and serving food will be smokefree;

— other pubs and bars will be free to choose whether to allow smoking or to be smokefree;

— in membership clubs the members will be free to choose whether to allow smoking or to be smokefree; and

— smoking in the bar area will be prohibited everywhere."

(White Paper, page 99, paragraph 76)

4. On the proposed timetable, the White Paper stated that:

"We intend to introduce smokefree places through a staged approach:

— by the end of 2006, all central government departments and the NHS will be smokefree;

— by the end of 2007, all enclosed public places and workplaces, other than licensed premises (and those specifically exempted), will, subject to legislation, be smokefree;

— by the end of 2008, arrangements for licensed premises will be in place."

(White Paper, page 99, paragraph 77)

PUBLIC OPINION

— It is clear from extensive polling evidence that the public would give majority support to comprehensive smokefree legislation. The Irish and New York examples suggest that such legislation becomes overwhelmingly popular after it is introduced.

5. It would appear that there is a concern in some parts of Government—carefully fostered by the tobacco industry and its front groups—about whether the majority of (at least) the English public backs comprehensive smokefree provision. This arises because many polls (including the Smoking Related Behaviour and Attitudes module conducted by the Office of National Statistics, and all polls conducted by the tobacco lobby) segment the issue by asking about smokefree legislation in relation to particular categories of public place.

6. Even given this approach, it is clear that public opinion has shifted markedly in recent years towards smokefree legislation. The latest ONS survey report shows a large increase in support for restrictions in pubs, from 48% in 1996 to 56% in 2003 and then to 65% in 2004. When people were asked in more detail what restrictions in pubs they would prefer, 47% thought that pubs should be mainly non-smoking with smoking allowed in designated areas, and 16% thought the premises should be mainly smoking with a designated non-smoking area. Nearly a third (31%) said that smoking should not be allowed anywhere, an increase of more than half since 2003, when only 20% thought smoking should not be allowed anywhere. Only 5% thought there should be no restrictions on smoking at all. Public opinion is continuing to shift on the issue across the UK. Support for smoking restrictions in other locations exceeded 80%—for example, indoor shopping centres (87%), indoor sports and leisure centres (93%) indoor areas at railway and bus stations (82%).[15]

7. However, if the issue is not segmented in this way, it is clear that a majority of the public will assent to the proposition that all workplaces and enclosed public places (including all pubs and restaurants) should be smokefree.

8. The latest poll to show this was conducted by BMRB for ASH (fieldwork between 15 and 17 July 2005, sample size 996). [16]Asked "The Government has announced plans to make most enclosed public places smokefree from 2008. Would you support a proposal to make ALL enclosed workplaces, including pubs and restaurants, smokefree? " 73% supported the proposition, with 24% saying no and 3% saying don't know. The poll also shows that 85% of people would visit bars and pubs as often—or even more often—if they were smokefree by law.

9. Detailed results include:

— The Government has announced plans to make most public places smokefree from 2008. Would you support a proposal to make ALL workplaces—including all pubs and all restaurants smokefree?

	All %	Non smokers %	Smokers %
Yes	73	82	46
No	24	14	52
Don't know	3	3	3

— If the indoor premises of pubs and bars were smokefree by law, do you think you would you use them more often, less often or about the same?

	All %	Non smokers %	Smokers %
More often	28	36	4
If would make no difference	57	59	52
Less often	12	2	42
Don't know	2	2	2

Smokers made up 25% of the survey sample.

10. This confirms previous poll results. In April 2004, MORI was commissioned by ASH to conduct by far the largest and most representative poll so far conducted on the issue (poll size—4,000 adults across Great Britain). The question asked was:

— "Ireland, Canada, Norway and New Zealand have each passed laws to ensure all enclosed workplaces are smoke free. How strongly, if at all, would you support or oppose a proposal to bring in a similar law in this country?"

The results were as follows:

— 54% strongly support;

— 25% tend to support;

— 8% neither support nor oppose;

— 7% tend to oppose; and

— 4% strongly oppose.

Support for a smokefree workplace law was strong across all social classes:

— 86% of social class AB support the proposal;

— 83% of social class C1 support the proposal;

— 79% of social class C2 support the proposal; and

— 72% of social class DE support the proposal.

Even regular smokers support a new law: the MORI poll showed support from 59% of daily smokers and 68% of infrequent smokers. [17]

11. The ASH poll cited above also found that 49% of adults specifically supported a complete ban on smoking in pubs. This result was in fact more favourable than polls conducted around smoking in bars in New York before the city ordnance came into effect. In 2002, public opinion surveys in New York showed only 30% of the public specifically supporting legislation requiring fully smokefree bars. [18]

12. A crucial point about smokefree legislation is that it becomes more popular after its successful introduction. In Ireland, the most recent survey, conducted by TNS mrbi for the Office of Tobacco Control in March 2005 (in advance of the one-year anniversary of the law) shows extremely high levels of public support:

— 93% think the law was a good idea, including 80% of smokers;

— 96% of people feel the law is successful, including 89% of smokers;

— 98% believe that workplaces are now healthier because of the smokefree law, including 94% of smokers.

Support has grown steadily since the smokefree law was introduced. Before its introduction more than two thirds of the public supported the law (67%) while the vast majority of people wanted it to be complied with (81%). Independent research conducted three months following implementation (June 2004) indicated that 89% of people (smokers and non-smokers alike) felt the law had been a success.

13. We therefore conclude that if the Government opts for a comprehensive smokefree law covering all pubs as well as other workplaces and enclosed public places, then this will receive overwhelming public support, which will rise further after the legislation comes into effect. It is already the case that legislation including pubs and restaurants is more popular here than it was in Ireland prior to its introduction there. Independent research conducted in Ireland after the legislation was published but before it was implemented found that only 67% supported the inclusion of pubs and restaurants compared to 73% in the ASH BMRB poll. Subsequent research for the Irish Department of Health and Children (July 2004) indicated that public support had risen to 82% with 95% of people recognising it as a positive health measure. In addition, in the national New Year's Poll ("2004—How was it for you? ") carried out for RTE television and broadcast on New Year's Day—the smokefree law was voted the no 1 "high" of 2004. The poll featured the top sporting, cultural, current affairs and other events throughout the year. [19]

14. The Government should therefore present this issue as a single yes/no question, either legislation is introduced to end smoking in all workplaces and enclosed public places or it is not. If this is done, public opinion will not represent a significant barrier to action—indeed the legislation is likely to prove, as in Ireland, a major political and popular success.

ECONOMIC IMPACT

— There are large economic benefits to be gained from smokefree legislation and the consequent fall in smoking prevalence rates.

— There is extensive evidence showing that smokefree legislation does not cause economic damage to the hospitality industries.

15. Comprehensive legislation ending all smoking in workplaces and enclosed public places is the cheapest and simplest way to protect the public from the health risks of secondhand smoke. By comparison, the costs of a policy of improved ventilation and more segregation of smokers and nonsmokers would be very considerable. Modern ventilation systems are expensive to install and to maintain. In 1999, the HSE estimated that the initial installation costs of ventilation equipment in all organisations not currently separating smokers and non-smokers would be between £580 million and £2,400 million, with an annual maintenance cost of about 10% of the initial outlay. The HSE estimated that the total cost of a voluntary scheme for all workplaces to have either smoking rooms or mechanical ventilation would consist of "one-off" costs of between £1,259 million and £3,167 million in 1998-99 prices and recurring costs over 10 years of £1,889 million to £5,694 million. [20]

16. Using previous estimates from the Scottish Executive, Department of Health and HSE, Professor Christine Godfrey of the University of York has estimated that making all workplaces in the UK smokefree would realise substantial economic benefits, of approximately:

— at least £832 million from prevention of death and disease;

— £181 million from prevention of fires and reduced cleaning costs;

Her detailed estimates are as follows: [22]

Summary of revised estimates of the annual potential benefit of making UK workplaces smokefree, at 2003-04 prices

£ million

From reduction in passive smoking:

Value of reduced deaths from passive smoking 652

Productivity gains from reduced sickness absences 249

Reductions in NHS costs from reduced sickness 8

From reduction in active smoking:

Reduction in number of smoking related deaths among those aged under 65 133

Reductions in NHS costs from quitters 39

Productive gains from reductions in smoking absences among current smokers 9

From smokefree workplaces:

Reduced fire damage, deaths and injuries, fire services and administration 53

Reduced cleaning and refurbishment costs 128

From productivity gains arising from changes in working patterns 2,596

Total 3,867

17. The tobacco lobby and sections of the hospitality trade often claim that smoking restrictions are bad for business. The objective evidence does not support this claim. For example, in March 2004, a report on the impact of the legislation was issued by the New York City Department of Finance, the Department of Health and Mental Hygiene, the Department of Small Business Services, and the Economic Development Corporation. It concluded that: "One year later, the data are clear . . . Since the law went into effect, business receipts for restaurants and bars have increased, employment has risen, virtually all establishments are complying with the law, and the number of new liquor licenses issued has increased—all signs that New York City bars and restaurants are prospering. "[23]

18. In Ireland, the Vintners Federation of Ireland and other groups have claimed that the smokefree law has reduced pub takings by "20-30%".[24] This claim is false. The retail sales index for bars volume in Ireland (2000=100) shows that the value of bar sales in Ireland decreased by 4.0% in the year following the introduction of smokefree legislation (April 2004 to May 2005), continuing a trend that began at least two years before the legislation came into force. [25]The decline in volume at drinking places in Ireland is a function of changing social habits—not smoking laws.

19. A major review of economic evidence from jurisdictions with smoking restrictions was conducted by Luk Joossens et al for the Smoke Free Europe partnership. [26]

20. The review looked at almost 100 studies from Canada, UK, USA, Australia, New Zealand, South Africa, Spain and Hong Kong. It failed to find a negative impact or a positive effect in studies based on objective and reliable measures, such as taxable sales receipts, data several years before and after the introduction of smoke free policies, where controls for changes in economic conditions were employed, and where statistical tests were used to control for underlying trends and data fluctuations.

EXEMPTION FOR LICENSED PREMISES THAT DO NOT PREPARE AND SERVE FOOD

21. The Government proposes to exempt from full smoking restrictions pubs that do not serve prepared food. ASH considers this proposal highly undesirable for the following reasons:

— It would fail to protect the health and safety of some of the most vulnerable people in the workplace.

— It would create perverse incentives and unfair competition in the pub and hospitality industry.

— It would be more costly and burdensome to enforce and would conflict with regulatory principles set out in the Hampton Review.

— It would undermine the public health benefits of smokefree legislation, particularly in poorer communities.

— It would undermine the Government's alcohol policy by encouraging "stand-up" binge drinking rather than alcohol consumption with food.

— It would be open to challenge under the Human Rights Act and under existing health and safety law.

HEALTH AND SAFETY

22. The Scientific Committee on Tobacco and Health (SCOTH), which advises DH, reported in November 2004 that: "overall exposure to secondhand tobacco smoke in the population has declined somewhat as cigarette smoking prevalence has continued to come down. However, some groups, for example bar staff, are heavily exposed at their place of work. " The report concluded that: "it is evident that no infant, child or adult should be exposed to secondhand smoke . . . Secondhand smoke represents a substantial public health hazard".[27]

23. Professor Konrad Jamrozik, formerly of Imperial College London, estimated in May 2004 that secondhand smoke in the workplace generally causes about 600 deaths each year in the UK and one death among employees of the hospitality trades each week. [28]For comparison, the total number of fatal accidents at work from all causes in the UK in 2002-03 was reported by the Health and Safety Executive as 226. [29]

24. There can be no justification whatever for protecting the great majority of employees from this serious workplace health and safety risk while continuing to leave some of the employees at greatest risk (bar staff in exempted premises) exposed.

25. Exempting a category of workplaces from smokefree legislation could be subject to legal challenge. The date of "guilty knowledge" under the Health and Safety at Work Act 1974 (HSWA) has now clearly passed in relation to secondhand smoke. This is the date by which employers should know of the nature of a specific workplace health and safety risk. Therefore, employees made ill by such exposure in the workplace will have a case for damages against their employer, claiming negligence and citing a breach of the HSWA as evidence. This would remain possible in respect of any premises exempted from a general prohibition on smoking. ASH has been working with the personal injury and trade union law firm, Thompson's, to identify such cases, and a number have already been settled out of court for substantial sums. [30]

26. The danger of exemptions to the hospitality trade could be that the Health Bill allows smoking to continue in some premises, only for the employers concerned then to face civil actions under the HSWA. If the legislation proceeds with the proposed exemptions, ASH will make it a priority to find and support such cases in exempted premises.

27. It has been suggested that Ministers may feel bound by the terms of the Labour Party manifesto for the 2005 General Election, which promised smokefree legislation but also offered exemptions for non-food pubs and clubs. However, the manifesto also stated that: "whatever the general status, to protect employees, smoking in the bar area will be prohibited everywhere." [31]We expect the overwhelming expert response to this during the consultation period to be that this proposal will not in fact protect employees—in which case the Government should reconsider the precise terms of the manifesto commitment, and recognise the clear benefits of comprehensive rather than partial legislation.

28. The proposal to prohibit smoking in the "bar area" of exempted pubs would fail to provide adequate protection for employees or members of the public. Smoke drifts. Most pubs currently have any separated smoking and non-smoking areas in the same open space.

29. Ventilation systems are expensive, hard to maintain, and as even Philip Morris has admitted, do not provide good protection from the health effects of secondhand smoke—"While not shown to address the health effects of secondhand smoke, ventilation can help improve the air quality." [32]

30. Recent research in venues in Sydney, Australia, showed that designated "no-smoking" areas in the hospitality industry provided at best partial protection and at worst no protection at all against the damaging effects of secondhand smoke. [33]

31. Research by D Kotzias and others at the European Commission Joint Research Centre's INDOORTRON facility concluded that ". . . changes in ventilation rates simulating conditions expected in many residential and commercial environments during smoking do not have a significant influence on the air concentration levels of ETS constituents, eg CO, NOx, aromatic compounds, nicotine. This suggests that efforts to reduce ETS originated indoor air pollution through higher ventilation rates in buildings, including residential areas and hospitality venues, would not lead to a meaningful improvement in indoor air quality. Moreover the results show that "wind tunnel"—like rates or other high rates of dilution ventilation would be expected to be required to achieve pollutant levels close to ambient air limit values".[34]

32. In other words, for ventilation to have any significant effect, it would require tornado like quantities of ventilation to produce an acceptable risk to those exposed to secondhand smoking. This is patently unrealistic.

REGULATORY IMPACT AND PERVERSE INCENTIVES

33. The proposed exemptions for some pubs and clubs would increase the regulatory burden on business, and create perverse incentives and unfair competition. For example, the British Beer and Pubs Association (BBPA) has previously commented that "creating an opt-out for clubs like this is a gross distortion of the market. There must be a level playing field for all".[35]

34. We agree with the memorandum of evidence submitted to the House of Commons Health Select Committee in February 2005 by the BBPA, which stated that: "if legislation is the preferred Government route, this needs to be implemented nationally and must be applied equally across all sectors of the hospitality industry. The staff and customer issues faced by licensees are no different in public houses, private clubs, restaurants, hotels, or workingmen's clubs, and preferential treatment or exemptions remain illogical in a public health context. "[36]

35. The proposed exemption for pubs not serving prepared food would also require more frequent and more intrusive inspections by enforcing bodies, particularly Environmental Health Officers. The Chartered Institute for Environmental Health has warned that the exemptions would "add to red tape and lead to a more complex licensing regime".[37] Paragraph 19 of the consultation document proposes to specify in regulations "a list of permitted foods for smoking licensed premises". These must be "pre-packaged ambient shelf-stable snacks".

36. Chapter 4, paragraph 79 of the White Paper suggests that between 10% and 30% of pubs to be exempted. There are about 55,000 pubs across the country, so even if this estimate proves accurate (see response to question 5 above) this exemption may cover anything between 5,500 and 16,500 establishments. However, the RIA states only that while the enforcement costs of comprehensive legislation might be £20 million, the costs of enforcing legislation with exemptions would be £20 million plus.

37. ASH commissioned Jane MacGregor of Jane MacGregor Associates (and the Local Authority Co-ordinating Office for Regulatory Services: LACORS) to survey seven authorities, representing London Borough, Unitary, Metropolitan and District Councils. They also represent different regions of the country and very different social settings. The seven authorities surveyed were:

— Derby City (urban unitary—Labour controlled).

— Gateshead (rural/urban metropolitan borough—Labour controlled).

— Southwark (London Borough—Lib Dem controlled).

— Liverpool (urban, metropolitan borough—Lib Dem controlled).

— Milton Keynes (rural/urban unitary—Lib Dem controlled).

— Reading (urban, unitary—Labour controlled).

— Warwick (rural/urban, district—NOC, Conservative largest party).

38. In order to calculate the cost per authority of enforcing both Option 2 (comprehensive legislation) and 4 (legislation exempting some pubs and clubs) in the Government consultation document, a formula was derived based upon the number of licensed business premises liable to inspection under such new legislation, the number of visits required and cost per officer hour. This formula was applied across all participating authorities, in order to calculate an estimated overall cost of each option. The results were:

— The range for enforcing Option 2: £12,800-£37,440.

— The range for enforcing Option 4: £19,200-£56,160.

The likely annual cost to Local Authorities of enforcing Option 2 is in the range of £4.5 million- £13.3 million; compared to £6.8 million-£19.9 million for enforcing Option 4.

39. Reasons given for differences were:

— The greater number of visits required to enforce Option 4—Regulations will be more difficult to understand by both public and business in terms of what is and what is not permissible;

— Licensed premises may give up serving food to avail themselves of the exemption afforded by Option 4. This will increase the number of visits required to ensure that the legislation is being complied with and that food is not being served;

— The "level playing field" for businesses created by Option 2 would allow for visits to be carried out in a more routine fashion and as part of other inspections for example food safety or health and safety inspections;

— There are likely to be fewer complaints to deal with from competing businesses and members of the public if Option 2 is adopted—the more straightforward legislation is, the less education and advice is needed before hand;

— If the legislation is less complex, as afforded by Option 2, the work could be undertaken by an officer on a lower salary grade; breaches would be less complex to detect and thus costs of enforcement lower.

40. It should also be noted that there were other costs identified by the respondents, notably the impact that this new legalisation will have upon their other regulatory functions, for example food safety and health and safety inspection work, both of which have performance measures attached to them, set by the Food Standards Agency and the Health and Safety Commission respectively. All the authorities surveyed preferred Option 2 in the Government consultation document. All thought that enforcing the new legislation would be relatively high priority work. Most were intending to bid for additional funding to enable the work to be carried out effectively.

41. The Hampton Review produced a series of regulatory principles which characterise good regulation. Regulations should be easily understood, easily implemented and easily enforced. The current proposals including exemptions and poor definitions conflict with these principles and are therefore at odds with existing Government regulatory policy.

PUBLIC HEALTH IMPLICATIONS

42. The proposal to exempt some pubs and membership clubs clearly threatens to undermine key Government public health objectives—to reduce smoking prevalence rates and tackle health inequalities.

43. It is clear that pubs and clubs that would be exempted under the Government's proposals would be concentrated in poorer communities. These communities will have higher than average smoking prevalence rates, and will be suffering from the sharp health inequalities that the class distribution of smoking brings.

44. ASH commissioned the survey firm IFF Research Ltd to survey 1,252 public houses and wine bars to establish: how many pubs currently do not serve prepared food; where such pubs are located; and what their likely future business decisions might be in relation to prepared food if the legislation includes the proposed exemptions.

45. Key findings from the survey are as follows:

What is your pub/wine bar's current policy on smoking?

No smoking throughout   1%

Separate rooms for smoking and non smoking   7%

Separate areas for smoking and non smoking 36%

No smoking at bar only   7%

Smoking throughout 46%

Other   3%

Don't know   *%

Base: All (1,252)

Does your pub/wine bar serve any food including hot food and/or cold food like sandwiches, ploughmans etc—or do you only provide packeted food, like crisps and nuts?

Packeted food (crisps and nuts) only 28%

No food at all 3%

Other food including hot 66%

Other food not hot 3%

Base: All (1,252)

As you may be aware, under current Government proposals, all restaurants, pubs and wine bars preparing and serving food will be required to be smoke-free by 2008. If these proposals go ahead which would you opt for—smoke free and serving food, smoke free and not serving food or smoking allowed but no food served?

Smoke free and serve food 44%

Smoke free but no food served 1%

Smoking allowed but no food served 41%

Don't know 14%

Base: All (1,252)

46. These findings show that the proportion of pubs not currently serving prepared food is at the very top end of the Government's White Paper estimate (10-30%). ASH also asked IFF to correlate the proportion of pubs serving and not serving prepared food to the deprivation indices for the postcodes in which they were located. Key findings here were:

Proportion of pubs not serving prepared food by deprivation index for postcode

(1—richest to 5—poorest postcodes)

1 14%

2 18%

3 25%

4 37%

5 45%

Proportion intending not to serve prepared food and to allow smoking throughout if exemptions are included in legislation

1 21%

2 29%

3 38%

4 42%

5 50%

47. These figures clearly provide powerful supporting evidence for two principal concerns of health and medical organisations:

— the concentration of exempt premises in low income communities means that exposure to secondhand smoke will be far higher amongst low paid bar workers and customers from more deprived areas, exacerbating health inequalities;

— exempted pubs are concentrated in poorer communities, would provide a continuing social focus for smoking and would therefore tend to reduce the impact of the legislation on smoking prevalence rates in these areas and widen health inequalities;

— if exemptions are included in the legislation, the number of pubs not serving food is likely to rise, further undermining public health gains from the legislation as well as undermining a key element of Government strategy in relation to alcohol consumption.

48. Paragraphs 8 and 9 of the RIA estimate that ending smoking in all workplaces and enclosed public places would reduce overall smoking prevalence rates by 1.7%. 0.7% of this effect is estimated to result from the direct effect of ending smoking in employees' own place of work, and 1% from more places outside smokers' own place of work going smoke free.

49. The RIA gives no assessment of the reduction in prevalence rates that would be achieved if the Government's proposed exemptions were adopted. However it does assess the health benefits from averted deaths from secondhand smoke for non-employees ("customers") of this option as worth £150-£250 million a year, as opposed to £350 million for the full ban. It also gives an estimate of the benefits from non-employees who are now smokers quitting as worth £0-£180 million for legislation with exemptions, and £180 million for a full ban.

50. In total, the RIA assesses the net benefits of a full ban at £1,344 to £1,754 million a year, compared to £998 to £1,586 million for the Government's preferred option. (For this purpose, one year of additional life expectancy is valued at £30,000). In other words, the Government proposed an option which reduces the net benefits by up to £350 million a year. It is significant that the Government has not yet published an estimate of the net effects on smoking prevalence rates of legislation with exemptions compared with a full ban?

51. The tobacco industry understands very well the benefits from its point of view of partial smoking restrictions in the workplace as opposed to comprehensive legislation. This is why such half-measures are promoted by its front organisations such as FOREST. An internal Philip Morris internal document from 1992 states that "total prohibition of smoking in the workplace strongly affects industry volume. Smokers facing these restrictions consume 11% to 15% less than average and quit at a rate that is 84% higher than average . . . these restrictions are rapidly becoming more common. Milder workplace restrictions, such as smoking only in designated areas, have much less impact on quitting rates and very little effect on consumption".[38]

UNINTENDED CONSEQUENCES FOR BINGE DRINKING

52. Chapter 4, paragraph 77 of the White Paper noted the risk that some pubs may cease to serve prepared food in order to qualify as premises that can continue to permit smoking. The fear is dismissed with the words "we believe that the profitability of serving food will be sufficient to outweigh any perverse incentive for pub owners to choose to switch". But this assertion has been contradicted by senior figures in the pub trade, for example, Tim Clarke, chief executive of restaurant and pubs group Mitchells and Butlers has warned that "the enforced specialisation between food and smoking risks commercially incentivising more pubs than the White Paper currently anticipates to remove food and retaining smoking throughout. "[39]

HUMAN RIGHTS AND OTHER LEGAL IMPLICATIONS

53. ASH has commissioned a legal opinion from Keir Starmer QC on the Human Rights Act implications of the proposed exemptions.

54. The opinion suggests that the current proposals may well breach the European Convention on Human Rights in relation to the proposed exceptions to the smoking ban.

55. In brief, Counsel considers that allowing these exceptions may well breach Articles 2 (right to life) and Article 8 (right to respect for private and family life). He also considers that the proposed exceptions may breach Article 14 (prohibition of discrimination) although it is more difficult to advise on this on account of uncertainties with regard to both the law and the effect of exemptions to the ban on particular groups.

56. Therefore, if the Government does proceed with present proposals by only introducing a partial ban, then this is almost certainly likely to lead to legal challenges by those left unprotected by the exemptions. Employees working in exempt licensed premises or membership clubs or prisoners or patients in psychiatric hospitals in which smoking was allowed would have particularly good grounds for bringing a successful challenge.

57. Apart from bar staff in exempt premises, other classes who might be held to be discriminated against by exemptions for non-food pubs and clubs include pregnant women (and by extension all women of child-bearing age, who may be in the early stages of pregnancy and unaware of the fact) since secondhand smoke is a particular risk to the foetus and therefore these women would not be able safely to use the services and facilities provided by such pubs and clubs.

58. Exempting a category of workplaces from smokefree legislation could be subject to legal challenge. The date of "guilty knowledge" under the Health and Safety at Work Act 1974 (HSWA) has now clearly passed in relation to secondhand smoke. This is the date by which employers should know of the nature of a specific workplace health and safety risk. Therefore, employees made ill by such exposure in the workplace will have a case for damages against their employer, claiming negligence and citing a breach of the HSWA as evidence. This would remain possible in respect of any premises exempted from a general prohibition on smoking. ASH has been working with the personal injury and trade union law firm, Thompson's, to identify such cases, and a number have already been settled out of court for substantial sums. [40]

59. The danger of exemptions to the hospitality trade could be that the Health Bill allows smoking to continue in some premises, only for the employers concerned then to face civil actions under the HSWA. If the legislation proceeds with the proposed exemptions, ASH will make it a priority to find and support such cases in exempted premises.

EXEMPTION FOR MEMBERSHIP CLUBS

— Membership clubs employ staff who would be left at risk under this proposal.

— No special protection is suggested for clubs that admit children. Children are at particular risk from secondhand smoke.

— Even the pub trade agrees—legislation should set a level playing field for all. Clubs should not be allowed to compete unfairly against pubs by continuing to permit smoking.

60. There are 3,751 licensed clubs in England and Wales (clubs in private ownership) and 19,913 registered clubs (owned by the members). (Source: Department for Culture, Media and Sport Statistical Bulletin Liquor Licensing, England and Wales, July 2003-June 2004).

61. It is clear that since many clubs (eg Labour Clubs) compete with local pubs for trade, such pubs would face unfair competition if smoking was ended on their premises but not in neighbouring clubs. We understand that strong representations on this point will be made to the Government by the hospitality trade, and these have our full support.

62. There is no special protection suggested under this legislation for clubs that admit children. Paragraph 4 of the November 2004 SCOTH report states: "A number of new studies have confirmed the range and extent of health damage in infancy and childhood. Children are at greatest risk in their homes and the evidence strongly links secondhand smoke with an increased risk of pneumonia and bronchitis, asthma attacks, middle ear disease, decreased lung function and sudden infant death syndrome. It has also been shown that babies born to mothers who come into contact with secondhand smoke have lower birth weights." [41]Since children are particularly at risk from the effects of secondhand smoke, this is entirely unacceptable.

RESIDENTIAL PREMISES

Any exemptions for residential premises that are also workplaces must ensure the protection of staff and should not prevent progress towards full smoke freedom as an objective of public policy

63. We accept the principle of a distinction between public and private (residential) places for the purposes of this legislation. This raises issues of boundaries between the two, particularly where public institutions act—permanently or temporarily—as primary residences, eg prisons, hospices, care homes, secure wards for psychiatric patients. It is important to balance the right of residents to behave as they wish in their own "home" with the right of workers and residents to work and live in a safe environment as far as possible free from the hazards of secondhand smoke.

64. We believe that where any exemption is granted, the agreed upon definition of the premises and any associated conditions ensure that in practice, and from the outset, such premises emphasise smokefree, with designated smoking areas, rather than emphasising smoking, with provision of designated smokefree areas.

65. We recommend that a general statement be included in the legislation, similar to that used in the Republic of Ireland's legislation[42] to the effect that: "An exemption does not constitute a right to smoke and employers are still bound by a duty of care to take every possible step to protect their employee". Workers in any exempted premises should have a legal right to request that they are not exposed to secondhand smoke in their working environment, and they should be accorded this right as part of an employer's duty of care.

66. We recommend that in any exempted premises, regulations should require all reasonable precautions to be taken to limit the migration of smoke from a smoking room to the rest of the non-smoking environment, in line with best practice. Exempt premises should be strongly encouraged to develop, implement and review a best-practice based smoking policy in order to protect staff and non-smokers from the health hazards associated with secondhand smoke.

67. We recommend that there should be an agreed review process for exempt establishments, with a view wherever possible to increasing smokefree provision in the future.

68. We recommend that all assistance be given to employers where exemptions are granted, in order to assist them prepare staff and service users for change prior to smokefree legislation being introduced. We recommend that specific guidance be tailored for different audiences regarding (a) the health hazards associated with secondhand smoke exposure (b) issues related to smoking cessation, and (c) details of services that are able to assist staff and service users with cessation advice and treatment where applicable. We also recommend that employers receive guidance on effective development and communication of smokefree policies in advance of legislation implementation, and that attention is drawn to existing national guidelines.

69. Psychiatric units raise issues which require a specific strategic approach. ASH supports the approach set out in the Health Development Agency publication "Where Do We Go From Here",[43] which recommends, inter alia:

— Research on any interactions between tobacco use and prescribed medication.

— Research on particular motivations among service users who smoke heavily (eg boredom, alleviation of symptoms, etc).

— Smoking cessation programmes designed specifically for mental health service users, which involve advocates, users and staff and can be integrated into overall care plans.

OTHER PUBLIC PLACES AND WORKPLACES OUTSIDE THE DEFINITION OF "ENCLOSED" THAT MIGHT BE SMOKEFREE

The legislation should allow the inclusion of sports stadia etc as relevant public places—wherever secondhand smoke in a public place is a significant danger to health it should not be permitted

70. ASH supports the inclusion of regulation-making powers to allow the legislation to apply to areas which, while not "enclosed" "carry risks of harm from secondhand smoke because of the close grouping together of people". This would include, for example, sports stadia and major railway stations.

71. Furthermore, as it is accepted that these areas carry risks of harm, then the much greater risks of harm to those working in pubs, bars and clubs with higher levels of exposure must also be accepted. Therefore the exemptions of these venues cannot be justified.

PROPOSED DEFINITION OF SMOKE AND SMOKING

All smoking should be ended in workplaces and enclosed public places: Secondhand smoke is a health and safety risk whether the substance being smoked is tobacco or something else

72. ASH believes that it should be an offence to smoke or permit smoking in enclosed workplaces and public places, regardless of what is smoked. Therefore, the new law should not just cover the smoking of tobacco products, as proposed in the current DH consultation document, but also herbal cigarettes etc. This would make the legislation easier to enforce. It would also be a consistent health and safety approach—inhalation of secondhand smoke is a risk to health whatever the substances being burned in the cigarette may be.

73. The main components of smoked tobacco that create health risks from secondhand smoke are carbon monoxide and respirable particulate matter. The second-hand smoke from herbal cigarettes contains both.

74. A study of herbal cigarettes published in the Lancet in 1999 demonstrated a higher level of carbon monoxide produced by burning vegetable based cigarettes compared with emissions from regular cigarettes. [44]Another study to determine the tar, nicotine and carbon monoxide in the mainstream smoke of selected international cigarettes showed that a brand of herbal menthol cigarette which did not contain detectable levels of nicotine, yielded mainstream smoke containing 9.8 mg of tar per cigarette, and substantial amounts of carbon monoxide (16.5 mg/cigarette). [45]This confirms earlier research in Australia, which suggested that tar and particulate matter were present in non-nicotine cigarettes at similar levels to tobacco cigarettes. [46]

75. Exempting non-tobacco cigarettes would also make the legislation harder to enforce. One example comes from Delaware, where a bar owner selling herbal cigarettes claimed he assumed all patrons lighting up were smoking non-tobacco cigarettes. [47]

September 2005