ASH Media Briefing: Health Improvement and Protection Bill Smoking in Workplaces and Enclosed Public Places



Monday 10 October 2005

ASH Media Briefing: For Immediate Use, Monday 10th October 2005

Health Improvement and Protection Bill
Smoking in Workplaces and Enclosed Public Places

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THE CABINET MAY DISCUSS THE FINAL FORM OF SMOKEFREE LEGISLATION AT ITS MEETING ON THURSDAY 13th OCTOBER.

This brief summarises the latest evidence on the issue and gives some forecasts about the likely outcome of the Cabinet discussion. ASH is available to provide further briefing, advice and comment on request.

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Introduction

1.      Action on Smoking and Health (ASH) welcomed the proposal in the White Paper on public health, published in November 2004, for legislation to end smoking in the great majority of workplaces and enclosed public places. This proposal was also contained in the Labour Party’s General Election manifesto (in Chapter 4 under “Healthy Choices for All”). A Health Improvement and Protection Bill was included in the Queen’s Speech on 17th May 2005. The Bill has flagship status.

2.      An end to all smoking in workplaces and enclosed public places would protect non-smokers from the damaging effects of secondhand smoke, and would encourage many smokers to quit.

3.      The final Cabinet decision on the smokefree provisions in the Health Bill was delayed from the original date of Thursday 6th October. It is believed that Health Secretary Patricia Hewitt wanted more time to prepare submissions and persuade Cabinet colleagues. The debate in Cabinet will be about whether:

·         To adopt the original proposals in the November 2004 (which allowed for exemptions for some pubs and clubs)

·         To opt for comprehensive legislation, coming into effect some time in 2007

·         To opt for comprehensive legislation but to delay the start date, possibly until after the next Election, or

·         To find some other partial or compromise solution – possibly allowing separate “smoking rooms” in pubs with more than one room.

4.      We believe that the Cabinet is now more likely than not to agree to comprehensive smokefree legislation. This view is shared by industry representatives – the Morning Advertiser of 6th October reported that “the Govt is more likely than ever to push for a complete pub smoking ban after it emerged that the Dept of Culture Media and Sport has recommended the move, the Morning Advertiser has learnt … Association of Licensed Multiple Retailers chief Nick Bish said the final decision will probably rest with the Prime Minister. But he expects the Cabinet to unite behind a full ban after sources in DCMS indicated that Culture Secretary Tessa Jowell favoured such a move…”

5.      Relevant Departments believed to support this course of action are: the Treasury (which commissioned the Wanless report on public health that led to the November 2004 White Paper), ODPM (responsible for local Government, which would need to enforce the legislation), DCMS (responsible for the leisure industry and tourism), the Department of Work and Pensions (to which the Health and Safety Commission reports), and possibly the Home Office and Cabinet Office.

6.      However, likely opponents of comprehensive legislation include Defence Secretary John Reid, who as Health Secretary produced the much criticised proposal to exempt some pubs and clubs. He may argue that Labour should stick to its precise Election manifesto commitment (see below) and that comprehensive legislation would not be supported by some Labour core voters (he attracted controversy as Health Secretary by describing smoking as a “working class pleasure”.)

Manifesto, White Paper and DH Consultation Document

7.      The Labour Party manifesto commitment read: “We recognise that many people want smoke-free environments and need regulation to help them get this. We therefore intend to shift the balance significantly in their favour. We will legislate to ensure that all enclosed public places and workplaces other than licensed premises will be smoke-free. The legislation will ensure that all restaurants will be smoke-free, all pubs and bars preparing and serving food will be smoke-free; and other pubs and bars will be free to choose whether to allow smoking or be smoke-free. In membership clubs the members will be free to choose whether to allow smoking or to be smoke-free. However, whatever the general status, to protect employees, smoking in the bar area will be prohibited everywhere.

These restrictions will be accompanied by an expansion of NHS smoking cessation services to encourage and support smokers to improve their own health by giving up smoking. Starting with the poorest areas of the country we will introduce health trainers to help people maintain their healthy choices. By 2010, through this activity we plan to reduce the health inequalities that exist between rich and poor.”

8.      Chapter 4, paragraph 77 of the White Paper sets a relatively long time-table to implement smoking restrictions, as follows:

·  by the end of 2006, all government departments and the NHS will be smoke-free;

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

·  by the end of 2008 arrangements for licensed premises will be in place.

9.      The public health lobby has serious concerns about the proposed exemptions for pubs that do not serve prepared food and for private membership clubs. We believe that these exemptions cannot be justified on health and safety grounds, would significantly undermine the purpose of the legislation, and would sharply reduce the impact of the legislation on health inequalities. We also believe that the timescale for the proposed changes is too long – we have suggested that the legislation should come into force by Spring 2007.

10.  A Department of Health consultation paper on the smokefree elements of the Health Improvement and Protection Bill was published on 20th June 2005. It included the proposed exemptions, but asked for views on the principles of such exemptions and their effect on health inequalities, binge drinking (because of the perverse incentives they would give pubs to cease serving prepared food) and other key issues including health and safety.

11.  The DH consultation concluded on 5th September 2005. It is believed that as many as 60,000 responses may have been received, with the overwhelming majority supporting comprehensive legislation without the proposed exemptions.

Scotland, Wales and Northern Ireland

12.  On 30th of June 2005, the Scottish Parliament has passed comprehensive smokefree legislation, which will come into effect in all workplaces and enclosed public places at 6am on March 26, 2006.

13.  The National Assembly for Wales does not have primary legislative powers. However, on Tuesday 24th May 2005, the National Assembly voted in favour of calling for powers to introduce comprehensive smoking restrictions covering all workplaces. The Government has stated that the Assembly will get the powers it is seeking as part of the Health Improvement and Protection Bill.

14.  The Northern Ireland Office is conducting a second consultation in the province on smokefree legislation. It is believed that Northern Ireland Health Minister has now decided in favour of comprehensive legislation and will make an announcement in the next two weeks.

New Evidence

15.  Substantial new evidence has emerged during the consultation period which would justify a Government decision to remove the proposed exemptions from the final legislation.

Exempted Premises and Health Inequality

16.  The research firm IFF Research Ltd surveyed 1252 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. The survey showed that 29% of pubs and bars would currently be exempted from the legislation, at the top end of the estimate given in the November 2004 White Paper (10% to 30%).

17.  These premises would be concentrated in poorer communities. The IFF survey found that 45% of pubs and bars in the most deprived areas would be exempt, compared to 14% of pubs in the least deprived. The survey also showed that the proportion of pubs and bars not serving prepared food could rise to 40% if the final legislation includes the proposed exemptions. Smoking prevalence rates are substantially higher in poorer communities; this is the biggest single contributing factor to differences in life expectancy between social classes. The proposed exemptions would therefore exacerbate health inequalities.

Enforcement Costs and Regulatory Burden

18.  Jane MacGregor of Jane MacGregor Associates (and the Local Authority Co-ordinating Office for Regulatory Services: LACORS) surveyed seven authorities, representing London Borough, Unitary, Metropolitan and District Councils covering different regions of the country and very different social settings. The Councils estimated that Option 4 in the DH consultation document (legislation with proposed exemptions) would be up to twice as expensive to enforce as Option 2 (comprehensive smokefree legislation). It would also require more frequent and intrusive inspections, a clear and unnecessary burden on business. We understand that the Government’s Better Regulation Task Force has supported this conclusion, together with the ODPM.

Public Opinion

19.  Cancer Research UK and ASH commissioned polling firm BMRB and to conduct a poll on public support for smokefree legislation. The results showed that 73% of those polled support a law to ensure that all enclosed workplaces including all pubs and all restaurants must be smokefree.

20.  The BMRB poll also showed that 85% of people would visit bars and pubs as often – or even more often – if they were smokefree by law. Therefore, if the Government opts for comprehensive legislation, covering all bars and restaurants, it will get public support. The fact that separate polling covering pubs alone produces lower levels of public support – particularly in the “push polls” conducted by tobacco lobby groups – need not be a political barrier to progress.

21.  When the Office of National Statistics first asked a question about smokefree provision in Autumn 2003, only 20% of people wanted no smoking allowed anywhere. When they asked the same question in Autumn 2004 this had risen to 31%. In a YougGov poll commissioned by ASH and conducted in August 2005, 41% wanted pubs to be smoke free. Public support for completely smokefree pubs doubled from 2003 to 2005. Respondents were then given peer reviewed scientific evidence about the harm caused by secondhand smoke and asked the question again. This time a clear majority, 52%, did not want smoking allowed anywhere in pubs.

22.  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 67% supported the inclusion of pubs and restaurants in the legislation. That compares with 73% of people in Great Britain asked the same question this July. And once the legislation comes in support will continue to grow. Research carried out by the Irish Department of Health three months after the legislation was implemented found that support had risen to 82% (see Smoke-Free Workplaces in Ireland A One-Year Review http://www.otc.ie/Uploads/1_Year_Report_FA.pdf)

Legal Challenges

23.  Any attempt to exempt a category of workplaces from smokefree legislation would 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. 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. We also commissioned a QC’s opinion on the Human Rights Act implications of the proposed exemptions from Keir Starmer QC which suggests that employees in exempted premises would have a case under the Act.

Tobacco Industry Marketing and Lobbying Strategy

24.  The exemptions will also allow the tobacco industry to continue to use pubs and clubs as marketing tools. Over 80% of young people start smoking before they are 18 and for many, if not most, smoking becomes a habit in hospitality venues. The Observer newspaper revealed in its 25th September issue that Phillip Morris is now targeting bars and clubs with “themed installations” intended to promote Marlboro to young people as a premium cigarette brand. We understand that the company has also begun a similar exercise promoting budget brands in pubs, bars and clubs in poorer communities in Northern England. The Observer quotes an industry source as saying that: “the tobacco firms are looking to create extensive ‘design languages’ in bars and clubs and other venues through the use of particular types of furniture or material which will make people think of their brands”. Clearly, if many pubs, bars and clubs are exempted from smokefree legislation this marketing campaign will be easier to undertake and likely to prove much more effective in selling cigarettes to young adults.

25.  A Philip Morris internal memorandum from 1992 stated 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”.

http://legacy.library.ucsf.edu/cgi/getdoc?tid=qhs55e00&fmt=pdf&ref=results

Economic Impact

26.  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.”

27.  In Ireland, the Vintners Federation of Ireland and other groups have claimed that the smokefree law has reduced pub takings by “20-30%”. This claim is false. Indeed, according to the Irish Independent, Irish retail sales figures show that sales of beer, wine, spirits and food in pubs rose by 1.1pc in July 2005 compared with the previous month, showing an annual increase of 5.8pc. At the same time, off-licence sales fell by 5pc between June and July, showing a slight annual decrease of 0.1pc. The index shows that the value of sales in pubs is at its highest level since January 2003, one year before the smoking ban came in, with an increase in the volume of sales of 7.4pc since the beginning of the year. (http://www.unison.ie/irish_independent/stories.php3?ca=9&si=1467275&issue_id=12992)

Separate Smoking Rooms

28.  Allowing exemptions from smokefree legislation for separate smoking rooms in pubs would be a futile attempt to find a “halfway house” short of comprehensive smokefree policies, which would fail to protect workers and members of the public from secondhand smoke. It would also introduce further market distortions and lead to unfair competition between licensed premises.

29.  Any smoking room in a pub would be likely to be busy, with drinkers coming and going frequently – opening and closing doors. This would make effective segregation of smoke exceptionally difficult. In the overwhelming majority of premises, it would be impossible to segregate smoke in smoking rooms. Smoke does not stop at doors. An Australian study in 2004 found that ‘no smoking areas’ in licensed clubs contained as many tobacco toxins as smoking areas, and even when the club ‘no smoking’ areas were completely separate rooms, there was no material reduction in the level of harmful toxins in the air. The study involved comparison of the levels of atmospheric nicotine, particulate matter and carbon monoxide in the ‘no smoking’ and general smoking areas of 17 licensed clubs in Sydney.

30.  Therefore, either extremely tough segregation standards would be required (air tight rooms with separate ventilation and wide separation from non-smoking rooms) or the segregation would be ineffective. In the former case, only pubs or chains with very large resources would be even able to consider meeting such standards, facing other pubs with an invidious choice between large-scale investment or unfair competition. In the latter case the legislation would simply fail to meet the health and safety case, and in any event would leave the majority of pubs that do not have separate rooms facing unfair competition.

31.  Ventilation systems in smoking areas that are not fully segregated will not protect people in non-smoking areas. 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, e.g. 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”. [1]

32.  Would employees of pubs with smoking rooms work in such rooms? If so they would be exposed to a health and safety risk from which all other workers would be protected by statute. It is likely that such legislation would be challenged under the Human Rights Act – ASH has already commissioned an opinion from Keir Starmer QC which supports this conclusion. There could in any event be no justification for conceding the health and safety argument that secondhand smoke is a serious workplace risk, and then exempting from statutory protection at least some of the occupational group at greatest risk – bar staff.

Politics

33.  Delaying the introduction of the legislation would be a political mistake. Experience from Ireland, New York and elsewhere shows that the benefits of smokefree legislation take around a year to become fully apparent, because of the lag in producing objective health and economic data. This is also the point where such legislation becomes most popular. Therefore, introducing the legislation within a year of a likely Election would reduce the political benefits and risk making unproved legislation and election issue, while delaying it until after the next Election would simply give the opposition (both in the tobacco and hospitality industries and in Parliament) a target to shoot at. Successful smokefree legislation in Scotland, Wales and Northern Ireland introduced by the end of 2007 would also provoke criticism of delays in England.

34.  Smokefree legislation is essentially a yes/no question. Once the health and safety case and public health benefits are conceded it is really not possible to find a compromise (whether exemptions for some premises, separate smoking areas, ventilation systems or whatever) that is both practical and logical. The public health lobby has reams of objective evidence in relation to any compromise that has ever been mooted showing why it is not satisfactory. Also, there is no compromise that will not attract criticism both from industry and the health lobby – as shown by the response to the proposed exemptions for “wet-led” pubs and clubs. On this issue, any compromise will simply annoy both sides at once. The Prime Minister’s remark in his speech to this year’s Labour Party conference that “every time I’ve ever introduced a reform in Government, I wish in retrospect I had gone further” is relevant here.

35.  Smokefree legislation may not swing large numbers of votes among the general public, but it is regarded as enormously important by the large and powerful health lobby. To step back from comprehensive legislation now would greatly disappoint this lobby and would play into the stereotype that the Government is too timid to act on such issues.

36.  Staging the introduction of the legislation over two years (with a later start date for the hospitality trade) would make the legislation harder to publicise and enforce and reduce its impact on smoking prevalence. The Government backs an annual No Smoking Day on the second Thursday in March each year – the 2007 date therefore being 8th March. This would be the perfect opportunity to make a single major step forwards in encouraging smokers to quit.

Key Statistics

37.  Many UK workplaces are now non-smoking. However, many workplaces continue to permit smoking. Many such workplaces are operated by small firms and employ relatively low-paid staff. Workplace smoking is of course also common in the hospitality trades – restaurants, pubs, casinos etc. Using Government data, ASH has calculated that 2.2 million people work in places where smoking is allowed throughout and a further 10.7 million in places where smoking is allowed somewhere on the premises (http://www.ash.org.uk/media-room/press-releases/smoke-freedom-toolkit-published-also-key-figures-on-workplace-exposure).

38.  Professor Konrad Jamrozik of the University of Queensland estimates that exposure to secondhand smoke in the workplace causes 54 premature deaths each year among hospitality industry employees – or more than one a week, and more than 600 deaths each year across the UK.  This is more than three times the number killed each year in industrial injuries and accidents. (http://www.ash.org.uk/media-room/press-releases/major-new-study-shows-secondhand-smoke-leading-workplace-killer).

ASH Comment

39.  ASH Director Deborah Arnott commented:

“It is now clear that the Prime Minister has given Health Secretary Patricia Hewitt political permission to proceed with comprehensive legislation ending smoking in all workplaces and enclosed public places. And the health lobby has provided all the facts, evidence and arguments she could ever need to support this position.

What no-one can do is provide her with a backbone. This issue has now become the key test of her political reputation.

Bodged solutions such as exemptions for some pubs and separate smoking rooms would fail to protect workers and members of the public at most risk from other people’s smoke. They would be less effective in encouraging smokers to quit and more cumbersome and intrusive to enforce.