Session 2012-13

Children and Families Bill

Memorandum submitted by FOREST (Freedom Organisation for the Right to Enjoy Smoking Tobacco ) (CF 131)

FOREST submission opposing proposed amendment NC1 (banning smoking in cars with children) to the Children and Families Bill

About us

FOREST (Freedom Organisation for the Right to Enjoy Smoking Tobacco) was founded in 1979 to represent adults who choose to consume tobacco in full knowledge of the health risks associated with tobacco products. We also represent non-smoking adults who are tolerant of other people's enjoyment of tobacco.

Forest's mission is to protect the interests of adults who choose to smoke or consume tobacco and highlight the increasingly intrusive nature of government in the lives of private individuals.

Background

Smoking is banned in vehicles in England used for work as defined in the Smoke-free (Exemptions and Vehicles) Regulations 2007.

Similar regulations are in place in Scotland (The Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006), Wales (The Smoke-free Premises etc (Wales) Regulations 2007), and Northern Ireland (Statutory Rule 2007 No 138 The Smoke-free (Exemptions, Vehicles, Penalties and Discounted Amounts) Regulations (Northern Ireland) 2007).

Now, having banned smoking in all enclosed workplaces, including every pub, club and bar in the country, the tobacco control industry wants to extend the ban to outdoor public areas (including parks and hospital grounds) and private spaces including private vehicles.

The proposed amendment to the Children and Families Bill (banning smoking in cars with children) follows the failure of the Smoke-free Private Vehicles Bill.

Our position

FOREST would encourage adults not to smoke in cars carrying children because, in our view, children should not be exposed to cigarette smoke in a small confined space like a car. It is inconsiderate, at best.

According to research, however, relatively few adults smoke in a car with children. Legislation would be yet another example of government interfering unnecessarily in people’s private lives. We therefore strongly oppose this amendment.

1. Why legislation is unnecessary

Even if one accepts that smoking in a car carrying children is at best inconsiderate (which we do), the idea that large numbers of children are exposed to tobacco smoke in cars is as outdated as black and white television.

Today, very few adults smoke in a car when children are present.

According to the results of a survey conducted in July 2011 using an online panel of 1000 adult (18+) smokers established by Holden Pearmain for the Tobacco Manufacturers’ Association:

· 45% of smokers never smoke in their cars

· 76% would never smoke if children were present (a further 11% would ask for permission)

· 51% thought that a ban would be ‘very difficult’ or ’impossible’ to enforce

· only 13.6% of smokers would smoke as normal if children were present in a car [1]

A more recent study by the UCD School of Public Health, published in the Irish Medical Journal, found an even lower prevalence of smoking in cars carrying children in Dublin.

According to the Irish Independent (10 April 2013):

Plans to ban smoking in cars carrying children would be "labour intensive" and have little effect, according to a new study.

The study, which involved observing 2,230 drivers, found they were more likely to be using their mobile phones than smoking.

The study by the UCD School of Public Health, Physiotherapy and Population – which involved observing cars over three time periods in two Dublin locations – found the prevalence of mobile telephone use was 2.56pc while it was 1.39pc for smoking.

The more expensive the car the less likely the driver was to be smoking, according to the researchers.

"It was low for both. Eight adult passengers and just one child were observed as being exposed to a smoking adult driver," the findings, published in the Irish Medical Journal, said.

It suggested that the "resources required for a ban in vehicles may be labour intensive for the yield in detection or prevention." [2]

Responding to the report, Forest Éireann spokesman John Mallon said the study had vindicated his group’s stance that a ban on smoking in cars with children would prove difficult to enforce and unnecessary to introduce.

"Very few parents light up in a car carrying children. It’s inconsiderate and most adults recognise that," Mallon said.

"We would encourage parents not to smoke in cars when children are present but so few people do it that legislation is clearly unnecessary.

"It would be a huge waste of taxpayers’ money and would be almost impossible enforce. Education has to be better than coercion." [3]

Although the research took place in Dublin, the city and the culture is not unlike many cities in the United Kingdom and we believe that if the same research was carried out in the UK there would be a very similar result.

2. The health argument

Legislation is justified, we are told, because of the alleged harm caused by ‘passive smoking’. According to a paper by CR Consulting, commissioned in 2011 by the Tobacco Manufacturers Association [4]:

A number of studies have been undertaken especially in North America to identify the level of contamination in cars. These have typically involved a cigarette being consumed in the front of the car as it is driven at a variety of speeds with ventilation and windows at various settings – with usually a nicotine or particle monitor at breathing height on the back seat.

The issue here is the size of the space – clearly a small car has very little volume and so the concentration of contaminants is likely to be high. This especially so when a cigarette is smoked and the windows are shut and the vehicle is stationary.

This is the worst case from which these calculations arise. However car users can, and do, regulate the environment by opening windows and or using mechanical ventilation to create a comfortable environment.

To quote from the same studies that are used to highlight concerns:

· Even small adjustments make a considerable difference - ‘Opening a single window by 3" increased the vehicle’s air change rate by about tenfold, ranging from 8 to 12 times for various speeds and ventilation settings’ – this means that all of the air in the car is replaced every 5 to 7.5 minutes.

· These adjustments can be highly effective at reducing concentrations - in one study in two vehicles the nicotine levels were below the level of detection (one large SUV with ventilation and one driving with the window more than half open) although one driver had smoked 3 cigarettes in 40 minutes and the other 5 in 110 minutes.

· 79% of people who took part in the test and smoked in cars claimed to ban smoking when carrying passengers, or without ventilation, or both.

· This style of air management has not been adequately investigated – ‘Further research is required to understand whether drivers manipulate ventilation to reduce SHS, either by use of open windows or internal vehicle ventilation systems’.

Specific claims based on the air quality research:

Cigarette smoke particle exposure in a closed car is comparable to the exposure a firefighter might receive over four to eight hours fighting a California wildfire

· This originally comes from the California Environmental Protection Agency and confuses peak levels when a cigarette is being smoked in a car, with sustained contamination averaged over 4 or 8 hours for the firefighters.

One smoker emits five times more fine particles into a car than are emitted per-mile by the car’s exhaust pipe

· This appears to be true for petrol engine cars – however the particulate from traffic comes from diesel and not petrol engines.

Secondhand smoke in cars can be ten times more concentrated than the level considered "unhealthy" by the US Environmental Protection Agency

· The EPA’s much-cited outdoor daily standard for small particle air pollution (PM2.5) is 35 μg/m3. This is an average over 24 hours. Even the (supportive) research for this claim it would require a person to smoke continuously for 2 hours in a car with the windows partially open to achieve a similar level of exposure as the EPA standard.

Smoking in a car exposes children to the same levels of smoke in a busy smoke filled pub

· This again confuses the momentary peak exposure to smoke in a sealed up car with continual exposure over a period in a bar.

Opening a window does not reduce the levels of secondhand smoke in a car to a safe level as the smoke simply blows back into the vehicle, often lingering for hours

· Ventilation is clearly effective at diluting the smoke, as every one of the studies cited (Ott, Klepeis et al 2007) shows. The ‘8-12 times’ noted above means that all of the air in the car is replaced every 5 to 7.5 minutes.

The health argument is based upon the most extreme instances – very heavy smoking in stationary cars with no natural or mechanical ventilation.

In reality many smokers choose NOT to smoke in cars and the considerable majority have rules about not smoking with passengers in the car and/or using ventilation.

Even opening the windows just 3" has a dramatic effect on the air quality in the car.

Unfortunately there is no arguing with anti-smoking campaigners who are determined to force more legislation on smokers.

Speaking at the BMA conference in Cardiff in 2011, Douglas Noble, a public health doctor, even argued: "It would be safer to have your exhaust pipe on the inside of your car." [5]

Sadly, this is typical of the hyperbole we have come to expect from more militant tobacco control campaigners.

3. How reliable is the ‘evidence’ for a ban?

(a) A claim, often repeated, is that second-hand smoke is "23 times more toxic in a vehicle than in a home [or smoky bar]". Yet according to Ross MacKenzie of the School of Public Health at Sydney University, writing in the Canadian Medical Association Journal:

"In [an] exhaustive search of the relevant literature, we failed to locate any scientific source for this comparison." [6]

(b) On Wednesday 16 November 2011 it was very widely reported in the British media and around the world that the British Medical Association wanted to ban smoking in ALL cars, not just those with children present.

The BMA was keen to highlight the ‘fact’ that "studies demonstrate that the concentration of toxins in a smoke-filled vehicle is 23 times greater than that of a smoky bar"!

The following day the BMA was forced to issue another, less well-reported, press release:

CORRECTION TO BMA BRIEFING PAPER:
Smoking in vehicles – press release issued on Tuesday 15 November 2011 (publication date – 16 November 2011)

Please note, there is an error in the BMA briefing paper: Smoking in vehicles. On page 4, in the 3rd paragraph, the following sentence is incorrect:

"Further studies demonstrate that the concentration of toxins in a smoke-filled vehicle is 23 times greater than that of a smoky bar, even under realistic ventilation conditions". a, 17, 18, 19

This sentence was replaced with: "Further studies demonstrate that the concentration of toxins in a smoke-filled vehicle could be up to 11 times greater than that of a smoky bar".

We apologise for this error. [7]

(c) In October 2012 it was reported that researchers from Aberdeen University "have backed a proposal to ban smoking in private cars after they found that the habit produces pollutants which could be harmful to passengers".

In fact, researchers had examined just 17 drivers, 14 of them smokers. [8]

(d) According to the British Lung Foundation, in its submission supporting the amendment to the Children and Families Bill:

· 19% of children aged 11 to 15 reported often being exposed to second-hand smoke in cars (survey of 6971 boys and girls aged 11 to 15, conducted in 2010 on behalf of the NHS Information Centre) [9]

In addition:

· 51% of children aged 8 to 15 reported that they had at some point been exposed to cigarette smoke in a car [10]

The research also showed that 86 per cent of children across the UK want people to stop smoking when they are in the car.

How seriously should we take these results? Announcing its new tobacco control strategy in March 2013, the Scottish Government press release included a note about NHS Fife’s anti-smoking initiative. It featured the following statement:

The I-Don’t project surveyed 1500 students and showed that while students thought 75% of their peers smoked, in reality the number who smoked was less than 30%. [11]

In other words, surveys of students (and children) cannot be relied upon for accuracy. If a child says he (or she) has been in a car when someone has been smoking it doesn’t mean they have. The reality is probably very different and the true figure is very much lower.

4. Opinion evidence

FOREST is not alone in expressing concern at the prospect of a ban on smoking in cars, with or without children.

On 2 November 2012 the Press Association reported that:

David Cameron has distanced himself from plans to ban adults smoking in cars with children present. The Prime Minister, an ex-smoker, refused to support proposals which would outlaw lighting up in a vehicle containing youngsters.

Speaking at Prime Minister's Questions in the Commons, Labour MP for Stockton North Alex Cunningham claimed the vast majority of people backed such a ban, and asked the Government to support his Bill criminalising it.

Mr Cameron said "as a former smoker and someone who believes strongly in liberties", the ban on smoking in pubs "has worked".

But he added: "I am much more nervous about going into what people do inside a vehicle. I will look carefully at what you say, but we have to have a serious think before we take that step." [12]

Others who have expressed worries about a ban on smoking in cars include Matthew Wright, TV presenter and ex-smoker. Writing in the Daily Star Sunday (20 November 2011), Wright commented:

I used to enjoy driving and smoking ... The two went together like fags and beer. But my car never smelled of smoke because I’d only light up with the window open or the roof down.

People do say holding a ciggie impairs your driving. I’m sure it does…but it can’t be any worse than changing the CD or winding down the window, can it?

I’m told talking to a passenger is more dangerous still. Are we going to ban them from our cars too?

But what about those parents who smoke while their kids are in the back, Wrighty? We need laws to stop them poisoning their sprogs!

Well, I’ve spent the past few days wandering about London looking for them. I’ve seen them in the past. The sight of them feeding their kids second-hand smoke made me feel physically sick.

But after four days of searching I didn’t see one person smoking in a car with kids on board. Not one – and I live in the heart of the capital. [13]

Writing in the Sunday Times in the wake of the BMA’s call for a ban on smoking in all cars, columnist Rod Liddle, former editor of BBC Radio 4’s Today programme, described it as a "grotesque infringement of personal liberty", adding:

The BMA was palpably wrong last week when it called for the ban on smoking in cars. I don't mean simply that it was being fascistic and overstepping its remit: that, after all, is a given. I mean that it got all of its figures wrong and was forced to retract. But only after it had been on every news programme across the country, being self-righteous. [14]

Writing in the Observer Catherine Bennett observed:

Like the BMA's initial figures on toxins, my anecdotal research must lack any credibility but, as hard as I peered into cars while driving around north London last week, I saw no one smoking in them at all. Of course, there were endless drivers doing the routine, homicidal things that cry out for cruel and unusual punishment – talking on mobiles, monstering cyclists, tailgating, driving at 40mph in 20mph zones, the scamps.

But not one smoker could be seen subjecting children to a toxic cloud of carcinogens that is either 23 times stronger than a smoky bar or 11 times stronger: the BMA offered both figures last week. [15]

Philip Hensher, writing in the Independent, commented:

The desire to protect children from smoke is laudable. But how many people, seriously, smoke in their cars with the windows shut with children in the back seat? [16]

For Graeme Archer, writing in the Daily Telegraph (17 November 2011), the smoking ban still rankled and the proposal for a ban on smoking in cars was the final straw:

Few political acts have made me so angry, since few others seemed so obviously driven by malice … And now, the campaigners are back: some people, they’ve noticed, have been smoking in their cars. And other people might be in the car with them! So we need a new law, and a new set of criminals to prosecute – because, honestly, there’s nothing more important for either the political class or the medical establishment to be thinking about just now, right? [17]

Strong words, too, from Dr Phil Hammond, GP, journalist, comedian and broadcaster, in The Times (17 November 2011):

It’s impossible to justify smoking with children in the car, home or womb. But that doesn’t mean a leap to legislation. We have to go through the traditional cycle of patronising health promotion campaigns and doctors with big livers telling us how to live our lives. Only when that fails should we send in the police. [18]

5. The road safety argument

Apart from the issue of health, the main argument for further legislation rests on the argument that smoking is a potential distraction to drivers and could cause accidents. In fact, smoking is an insignificant factor in car crashes.

Research in this area is limited but the few studies that exist show that smoking while driving is one of the least distracting activities for a driver.

Things that are considered more distracting include chatting with passengers, outside activity, changing a CD or tuning the radio. Should they be banned as well?

According to CR Consulting, the US research (on which the claim that smoking leads to more accidents was based) classed driver distractions as follows as factors in car crashes:

Specific Distraction % of drivers

Outside person, object or event 29.4
Adjusting radio, cassette, CD 11.4
Other occupant in vehicle 10.9
Moving object in vehicle 4.3
Other device/object brought into vehicle 2.9
Adjusting vehicle/climate controls 2.8
Eating or drinking 1.7
Using/dialing cell phone 1.5
Smoking related 0.9
Other distraction 25.6
Unknown distraction 8.6

Total 100%

In other words, the distraction from another person inside the car is over 30 times as likely to cause an accident as smoking a cigarette. [19]

6. Slippery slope – what next?

The slippery slope argument is a valid one. Significantly, many anti-smoking campaigners are not satisfied with banning smoking in cars with children. Just as smoking is banned in every pub and private members’ club in the country, the BMA wants a ban on smoking in ALL cars, including private vehicles, regardless of who’s in them.

If this were to happen adults would be prohibited from smoking in their own family cars even if they were the only person in the vehicle. How can that be justified, and is government really going to waste police time enforcing such an illiberal, spiteful law?

Others have described smoking in a car with children as child abuse. Entrepreneur Duncan Bannatyne wants children to be able to report parents who smoke in a car to the police. He also believes it should be illegal to smok e at home in front of children. [20]

The only way that this could be enforced is for neighbours, family members or even the children to go to the police or social services. Is that the type of over-regulated, curtain-twitching society we want Britain to become?

Enforcement

An important issue, easily overlooked, is one of enforcement. The police have enough on their hands already without having to investigate and possibly prosecute drivers who might be smoking in a car carrying children.

According to CR Consulting (November 2011):

The closest parallel to the issue of enforcement of smoking bans in private cars is perhaps the use of handheld mobile phones. There is a perceived threat to the occupants (in terms of safety) and yet self-enforcement is low and enforcement from external authorities is limited.

In the UK in December 2003 the law banned the use of hand-held mobile devices in or on vehicles. The penalties were strengthened in 2007 to a £1000 court fine for a private motorist and £2500 for a commercial vehicle or public service vehicle driver.

According to the Green Flag/Brake Report ‘Driven to Distraction’ (2006) awareness and understanding of the law was high:

· 64% of drivers were aware of the law and a further 25% thought all mobile phone usage was banned.

· 69% agreed that ‘it is dangerous to drive using any type of mobile phone’ despite this understanding of, and sympathy with, the law.

· 36% admitted illegally using a hand-held phone whilst driving (15% of these at least once a month) presumably as fears of effective detection or prosecution were low

· 75% believe that there is either no chance (17%) or less than a one-in-four chance of being caught (8%)

The result has been a persistent level of offending throughout the country that dipped with the introduction of the initial law and again with the increase in penalties, but [by 2009 was] at a very similar level to the period before the ban was put in place. [21]

It is not unreasonable to think that legislation to ban smoking in cars with children would generate a similar reaction – a small initial drop in the number of people offending, followed by a gradual increase to pre-ban levels, as if the legislation had never happened.

The time and money required to achieve this non-result would be better spent, in our opinion, on education not coercion (ie legislation). How much better would it be if government worked with smokers not against them?

Summary

FOREST neither encourages nor condones smoking in cars carrying children, but a ban is out of all proportion to the problem.

In practice, as research shows, very few adults light up in a car with children present. The vast majority of adults don’t need to be threatened with fines or other penalties to behave in a considerate fashion.

The vast majority of smokers have clearly changed their behaviour voluntarily, without government inte rvention. So why do we need another law that even its supporters accept would be difficult to enforce? Education must be better than coercion.

Legislation is justified, or so we are told, because of the serious harm caused by ‘passive smoking’. Speaking at the British Medical Association conference in Cardiff in 2011 , public health doctor Douglas Noble argued that " It would be safer to have your exhaust pipe on the inside of your car". What nonsense.

Another claim, often repeated, is that second-hand smoke is "23 times more toxic in a vehicle than in a home [or smoky pub] ". Yet in 2010 an article by Australian researchers in the Canadian Medical Association Journal suggested there is no scientific evidence to support this argument.

Significantly, campaigners aren’t satisfied with banning smoking in cars w ith children. Just as smoking is banned in every pub and private members’ club, the BMA wants a ban on smoking in all cars, regardless of who is in them. If smoking is banned in cars carrying children expect a gradual but persistent clamour for smoking to be banned in all cars. In the world of tobacco control it’s called ‘the next logical step’.

Grasping at straws, campaigners argue that smoking while driving is a threat to other road users. Major international studies show that smoking while driving is one of the least distracting activities for a driver . Far more distracting are chatting with passengers, outside activity, changing a CD or retuning the radio. Should we ban those as well?

Banning smoking in a private vehicle, with or without children, is not only an unnecessary infringement of people’s civil liberties, as others have stated, it represents a serious invasion of a citizen’s private space. For many people this is a worryingly illiberal step. What next? A ban on smoking in the home if children are present?

Education, we believe, is better than legislation and we would welcome the opportunity to work with government to encourage the small number of adults who still smoke in a car carrying children to change their behaviour without the need for heavy-handed legislation that a hard-pressed police force would find it very difficult to enforce.

FOREST would be happy to work with government to achieve the desired outcome.

Finally, following the failure of the Smoke-free Private Vehicles Bill, we are concerned by what we believe to be an extremely misguided attempt to introduce a ban on smoking in private vehicles via the Children and Families Bill.

It is our understanding that the Bill is designed to help reform the adoption process with a view to reducing the number of children in care by increasing the number of children adopted.

If the amendment to ban smoking in cars with children is introduced it could have a devastating impact on a significant number of carers and potential carers.

Instead of freeing adoption from excessive bureaucracy, carers could find themselves criminalised for smoking on their own private property and excluded from the adoption process. That in turn could have terrible consequences for the children in care or in their care – especially if the legislation was extended, at some time in the future – to include private homes with children.

We believe that to pass this amendment would institutionalise discrimination against smokers in all walks of life. In a free, tolerant society that is simply unacceptable. Please vote against it.

REFERENCES

[1] Smokers Panel, Holdern Pearmain, July 2011

[2] Ban on smoking in cars would have little impact, says study (Irish Independent)

[3] Smokers’ group welcomes study showing low level of smoking in cars (Journal.ie)

[4] Smoking in cars briefing (CR Consulting)

[5] Smoking in your car 'more damaging to health than breathing in exhaust fumes' (Daily Mail, 29 June 2011)

[6] BMA’s ‘facts’ prove to be all smoke and mirrors (Scotsman)

[7] BMA press releases archive (16 November 2011)

[8] Should smoking in your own car be banned? (Huffington Post)

[9] 19% in survey of 6971 boys and girls aged 11-15. Smoking, drinking and drug use among young people in England in 2010. NHS Information Centre, 2010

[10] BLF/TNS survey of 1,000+ children aged 8-15, 20-27 January 2011

[11] What children think is not reliable evidence (Taking Liberties)

[12] PM 'nervous' about car smoking ban (Press Association)

[13] I’m fumin’ at car cigs ‘ban’ (Daily Star Sunday, 20 November 2011)

[14] Stand back, I’m going to send the BMA’s claims up in smoke (Sunday Times, 20 November 2011)

[15] The ban that was guaranteed to have people fuming (Observer, 20 November 2011)

[16] The state wants to know what you’re up to. But why do we let it? (Independent, 17 November 2011)

[17] All these smoking bans have left me fuming (Daily Telegraph, 17 November 2011)

[18] I wouldn’t get in a car with a smoker. But a ban is silly (The Times, 17 November 2011)

[19] Smoking in cars briefing (CR Consulting)

[20] Den star in car cig kids row (The Sun, 8 August 2010)

[21] Smoking in cars briefing (CR Consulting)