SUBMISSION ON PROPOSED BAN ON SMOKING IN THE WORKPLACE

Transcription

1 SUBMISSION ON PROPOSED BAN ON SMOKING IN THE WORKPLACE EXECUTIVE SUMMARY.. 1 Review of Report of Expert Scientific Group....9 Adverse Health Effects of a Smoking Ban 14 Smoking Bans and Conflicting Duties of Bar Owners Social Impact of a Smoking Ban Economic Impact of a Smoking Ban Compliance and Enforcement Problems 20 The Experience of California. 21 Government Consistency Issues 22 Property Rights and Smoking Bans Recommendations..24 Document prepared by: Richard Donovan CEA Economic Consultants 1 Forster Place, Galway May 2003

2 EXECUTIVE SUMMARY The Irish Hotels Federation (IHF) is the national representative body of the hotel and guesthouse industry in Ireland. The Federation welcomes the opportunity to put forward its views and concerns on the proposed ban on smoking in hospitality venues as stipulated in Article 2 of the Public Health (Tobacco) Act 2002 (Section 47). This submission does not attempt under any circumstances to dispute the evidence regarding the commonly cited negative effects of environmental tobacco smoke (ETS), also known as passive smoking. In addition, it recognises that the principal objectives of the proposed smoking ban are to protect employees and non-smoking patrons from ETS exposure, as well as to discourage an uptake in smoking and encourage existing smokers to kick their habit. However, this document questions the wisdom of a total ban on smoking in the hospitality industry, particularly throughout the bar and function areas of hotels as well as bedrooms. The IHF believes that a blanket smoking ban is completely unnecessary and indeed may be counterproductive in achieving the desired health aims. In addition, there are a variety of legal, economic and social issues that must be considered carefully and clarified prior to implementing such a ban. As part of the hospitality and service industry, hotels are expected to meet the needs of their clients and a significant number of guests would like the facility to smoke somewhere on the premises. With this in mind, and in the light of the issues highlighted in this submission, the Federation calls for a compromise whereby smoking is permitted in at least part of the bar/function areas. It puts forward workable recommendations that can accommodate both smokers and non-smokers, yet is complementary to health objectives. It is also worth noting from the outset that unlike other businesses, hotel bars and pubs in general are predominantly the reserve of over 18s: therefore, smoking in pubs does not run contrary to efforts to shield minors from the effects of cigarettes. The following pages present a point-by-point summary of most of the pertinent issues: 1

3 Report of Expert Scientific Group 1. The Report on the health effects of environmental tobacco smoke (ETS) in the workplace, which was commissioned by the Health and Safety Authority and Office of Tobacco Control, states that In contrast to accumulating evidence on the increased risk of heart disease from exposure to spousal ETS, studies of ETS exposure in the workplace are relatively sparse and somewhat inconclusive. 2. The Report cites papers that unambiguously show that hospitality workers exposure to ETS can be substantially reduced via designated areas for smoking and non-smoking as well as ventilation techniques. Hence, a 100% smoking ban is not warranted. 3. A highly respected New Zealand study cited in the Report found that the majority of non-smoking bar employees did not suffer from an increase in ETS exposure when working in a premises with designated smoking and non-smoking areas. 4. Amazingly, the same New Zealand study found that on premises which were completely smoke-free, one in five non-smoking employees still managed to record an increase in ETS exposure! Therefore, although some health advocates may argue that segregated areas and ventilation techniques do not eliminate ETS completely, a 100% smoking ban will evidently not achieve this result either. WHO framework convention on tobacco control 5. On May ,192 members of the World Health Organization, including Ireland, unanimously adopted the Framework Convention on Tobacco Control (FCTC) aimed at curbing tobaccorelated deaths and disease. The objective of the Convention is to reduce continually and substantially the prevalence of tobacco use and exposure to tobacco smoke. Among the Convention s aims is the establishment of clean indoor air controls, but there is nothing in the Convention that requires signing countries to impose a complete ban on smoking in the hospitality industry. Moreover, Article 4 (Guiding Principles) (2) calls for the implementation and evaluation of tobacco control programmes that are socially and culturally appropriate to (a country s) needs and perspectives. Furthermore, Article (4) (3) states the need to 2

4 establish and implement effective tobacco control programmes, taking into consideration local culture, as well as social, economic, political, and legal factors as being an important part of the Convention. The recommendations contained in this submission are entirely consistent with the objective, aims and principles of the Convention. Report of Tobacco Free Policy Review Group 6. In its document published in 2000, the Tobacco Free Policy Review Group did not support a 100% smoking ban on licensed premises. The Group stated that A voluntary code of practice for pubs and licensed sporting facilities should be developed. The pub is often misrepresented as being resistant to good health messages. We believe there is a demand for clean air in pubs where patrons are free to enjoy their drink without having to breath someone else s tobacco smoke. 1 Adverse Health Effects of a complete Smoking Ban 7. Given the unique biological, psychological and economic relationships between alcohol consumption and smoking, the implementation of a smoking ban may encourage cigarettedeprived individuals to abuse the primary product that pubs provide, i.e., alcohol. Such abuse occurs as cigarette-deprived patrons consume increasing amounts of alcohol in order to reach the same pleasure levels that combined smoking and drinking can provide. 8. Alcohol abuse, in turn, can lead to a multitude of other problems that will also impact third parties in the same vein that second hand smoke is said to impact non-smokers, e.g., violence and drink driving. 9. Cigarette-deprived individuals may also increase the intensity of their smoking in the home, particularly after a trip to a pub in which smoking was prohibited. This could potentially expose children in the home to the effects of second hand smoke. 1 Tobacco Free Policy Review Group (2000). Towards a Tobacco Free Society, p 51. 3

5 Conflicts with Other Responsibilities of Proprietors 10. As people are forced to go outside an establishment to smoke, there is a danger to them from road traffic and an increased likelihood of disorder and nuisance on the streets. Yet, recent proposals such as the Criminal Justice (Public Order) Bill, 2002 will hold licence holders responsible for disorderly conduct near their premises. 11. Continual gatherings of smokers outside premises will also lead to increased environmental noise pollution for local residents as well as litter problems. 12. A smoking ban can cause tension and irritability among smokers who suffer from nicotine depletion as a result. Such tensions can be a precursor to disorderly conduct in pubs as evidenced in California where more fights broke out on licensed premises following the introduction of a smoking ban in that State s bars in Hence, a smoking ban would set the responsibilities of a bar owner into conflict, i.e., the licensee s obligation to run an orderly house versus his obligation to implement a smoking ban (that would be conducive to setting the scene for disorderly behaviour). 13. A smoking ban can also create fire hazards as people gather near exit doors and false fire alarms are set off via smoking incidents. 14. Forcing law-abiding patrons, including elderly people who have smoked for a lifetime, out into the freezing cold or rain during winter months could be seen by some as an action of incivility more pathological than the effects of ETS exposure. 15. A smoking ban can have negative effects on the morale and stress levels of staff who are smokers. Social Impact of a Smoking Ban 16. Because of the expanded social role of pubs in this country vis-àvis other countries, legislation prohibiting smoking in pubs could damage the "fabric" of socialising in Ireland. Such legislation might encourage smokers to socialise only within their homes, thereby leading to a loss of community and an increasing sense of isolation. 4

6 17. The less well off members of society, given that they smoke more, would be disproportionately adversely affected and marginalised by any legislation that would remove their right to smoke in a bar. 18. There is empirical evidence that customers do not support a ban on smoking in pubs, as it is often the case that non-smokers willingly accompany and sit with smokers in a pub. A Galway pub, An Tobar, which became Ireland s first complete non-smoking pub in 1998, had to reverse its policy due to the resulting fall-off in customers. Non-smoking patrons preferred to accompany their smoker friends to smoking pubs. Economic Impact of a Smoking Ban 19. The hospitality industry is a major contributor to the economy and employment. The viability of many licensed premises in this country and their employees jobs would undoubtedly be put under tremendous pressure. 20. It is unlikely that non-smokers, even though larger in number, would make enough additional visits or spend more per visit to offset the decreases that would occur among smokers. 21. Any unilateral move by Ireland to introduce a smoking ban in all bars and hospitality venues could disadvantage us as a tourist destination (with visitors who wish to smoke without such restrictions). Compliance & Enforcement Problems 22. It would be impossible to police almost 11,000 Irish hotels and bars for compliance with no-smoking regulations. 23. It would be extremely difficult for hotels to enforce smoking bans in customers bedrooms. 24. Those premises that refuse to comply with legislation, and enforcement of the legislation would be unworkable, would be given an unfair advantage over complying establishments. 5

7 Experience from Overseas 25. In California, where a smoking ban in bars was introduced in 1998, the result was a combination of business and job losses, inconsistent enforcement and lack of compliance. Publicans complying with the smoking ban lost revenues and laid off employees. Pubs situated in areas that were heavily enforcing the ban suffered losses, but in other areas businesses that accommodated their smoking patrons experienced an increase in revenues. Many bar owners and employees, local elected officials and enforcement agencies simply ignored the smoking ban altogether. Government Consistency Issues 26. From a government perspective, if the government is to be consistent in banning activities that are deemed to have potential negative health effects, then 1) Given that diet, and in particular fats, are considered to contribute more to deaths from cancer than tobacco, the government must consider measures like banning fatty foods from fast food outlets or taxing them at many times the rate they are currently taxed. 2) The question also arises as to whether mobile phones, for instance, should be banned from work and public places because not only is there emerging evidence that they are potentially damaging to users health, but mobile phones also produce noise pollution that affects third parties in enclosed places. Property Rights Issues 27. From a property rights perspective, a smoking ban amounts to a confiscation of private property and can only be constitutionally 6

8 justified on the grounds that the public good benefits are sufficient to warrant such an infringement. However, given that 1) The banning of smoking from pubs could lead to another serious problem, i.e., alcohol abuse by regular smokers (which has impacts for both smokers and non-smokers alike), and 2) Feasible alternatives to a smoking ban exist, i.e., segregation of smokers and non-smokers or a voluntary code of practice incorporating the installation of air purification systems, then, the implementation of such a ban would amount to excessive interference by the State and could be legally challenged on these grounds. Recommendations! Given 1) ventilation techniques and segregated smoking and nonsmoking areas are shown to substantially reduce exposure to ETS, and 2) complete smoking bans may be counterproductive, unenforceable, and inherently conflicting with other proprietor responsibilities; it would seem reasonable to amend the Tobacco Act 2002 so that smoking is permitted in at least part of the pub/function area of hotels. A smoking exclusion zone at bar counters and where food is served could be incorporated into such an amendment. This would have the effect of accommodating smokers and non-smokers, both patrons and employees, in line with the nature of the hospitality business.! Guest rooms at hotels should also be made exempt from smoking bans because patrons who smoke in their rooms, and who are therefore physically partitioned from non-smokers, do not appreciably impact non-smokers via ETS.! Along with such amendments, the industry could additionally adopt a voluntary code of practice that would allow customers to make informed choices regarding which premises they should patronise (according to ventilation technology employed and percentage of premises designated to smoking / non-smoking). Practices that might rotate staff in smoking and non-smoking areas would also be welcomed in such a code. 7

9 ! In the absence of such sensible amendments being made to the Act, the IHF would ask that tobacco regulations be introduced on the same timescale as our European neighbours so that the Ireland does not experience a potential drop-off in tourists (who like to smoke). Furthermore, a smoking ban should only be introduced on a phased basis in premises, i.e., restaurants first, then lobby areas, and so on until bedrooms and bars are considered. In the interim, additional research on ventilation systems should be updated. 8

10 REVIEW OF REPORT OF EXPERT SCIENTIFIC GROUP A CLOSER EXAMINATION OF THE STUDIES CITED IN THE REPORT LEND SUPPORT TO POLICIES OTHER THAN AN OUTRIGHT BAN ON SMOKING. An expert scientific group was commissioned by the Health and Safety Authority and the Office of Tobacco Control to identify and report on the degree of consensus that exists among leading international scientific authorities on the question of the hazard and risk posed by environmental tobacco smoke to human health in the workplace. In January 2003 the group published it report 2, concluding that passive smoking causes serious illness including cancer and heart disease. It is curious to note however that the report clearly states on page 31 that In contrast to accumulating evidence on the increased risk of heart disease from exposure to spousal ETS, studies of ETS exposure in the workplace are relatively sparse and somewhat inconclusive. Nevertheless, on its release, the Minister for Health and Children, Michael Martin, announced that the government was to ban the smoking of tobacco products in the workplace from 1 January The expert report makes it clear that bar staff and hospitality workers at large are likely to have higher exposure to passive smoking than other occupational groups. Hence, assuming ETS has all the negative health effects as concluded in the report, then one of the particular concerns of the Irish Hotels Federation would be how such exposure levels to employees could be reduced while meeting the demands of smoking customers. Specifically, can ventilation systems work, or segregated sections for smoking and non-smoking? Is a complete ban on smoking absolutely necessary to substantially reduce employee exposure to ETS? Pages of the expert report provide some clues as these pages expressly address the issue of exposure to ETS among bar staff and hospitality workers. A selection of international studies are cited, all of which are depicted as showing that ETS levels are extremely high for hospitality staff and that ventilation or segregation techniques are ineffective policies to curb this ETS exposure. However, a closer examination of the contents of these studies and other directly related ones reveals that ventilation or segregation techniques can be effective in substantially reducing ETS exposure. 2 Allwright S, McLaughlin J, Murphy D, Pratt I, Ryan M, Smith A, and Guihen B (2002). Report on the health effects of environmental tobacco smoke (ETS) in the workplace. 9

11 New Zealand study of hospitality workers Clean air policies can substantially reduce ETS Consider the New Zealand study of hospitality workers 3, highlighted on page 33 of the expert group report and obviously held in very high regard by the group. This study found that workers on premises that allowed smoking by customers had substantially increased exposures to ETS compared with those working in smoke-free premises. However, it also noted that:! Those premises which operated clean air policies by restricting customer smoking to certain areas did, in fact, substantially reduce average exposure of staff to ETS. It is very important to examine the New Zealand study even more closely, as the expert group have referred only fleetingly to some broad results. All hospitality worker participants in the study were non-smokers and had provided a saliva sample before commencing their shift and again at the end of their shift. These samples were analysed for cotinine levels. (According to the expert group, cotinine is probably the most reliable estimate of recent exposure to ETS 4 ). The difference between the first and second saliva sample cotinine concentrations was used to calculate the degree of exposure to ETS over the course of the work shift. A number of findings in the study are of note. The summary statistical results, presented in Tables 3 and 4 of the research paper, reveal that:! Even in completely smoke-free workplaces, 20% of hospitality workers (who were all non-smokers) actually showed an increase in cotinine levels during their work shift, i.e., they apparently had increased exposure to ETS! Moreover, although health advocates may argue that no levels of ETS are safe and that no employee exposure to ETS should be acceptable, this paper amazingly demonstrates that even a complete smoking ban can result in higher recorded levels of ETS exposure for one in five hospitality workers. Furthermore, the study finds that: 3 Bates MN, Fawcett J, Dickson S, Berezowski R, Garrett N (2002). Exposure of hospitality workers to environmental tobacco smoke. Tobacco Control 2002; 11: Allwright S, McLaughlin J, Murphy D, Pratt I, Ryan M, Smith A, and Guihen B (2002). Report on the health effects of environmental tobacco smoke (ETS) in the workplace. Page

12 ! In work places that limited smoking to designated areas, the majority of workers (60%) showed no increase in cotinine levels. Essentially, the implementation of segregated areas for smokers and non-smokers results in 60% of workers not encountering increased ETS exposures. In fact, 30% of workers showed a decrease when compared to the sample before they began their work shift. Hence, this paper actually presents an argument for the effectiveness of reducing ETS by designating areas for smoking and non-smoking. Indeed, the New Zealand study concludes that policies in hospitality premises that restrict customer smoking to certain areas substantially reduce average exposure of staff to second hand smoke, but do not eliminate such exposure (Bates, Fawcett et al. 2002: p. 129). UK Studies on bar workers - ETS exposure levels have marginally reduced over time In its report (page 33), the expert group also cites a study of bar workers conducted in 1992 by Jarvis, Foulds et al. 5 In this particular study, the salivary cotinine levels of 42 non-smoking bar staff in 27 pubs in London and Birmingham were examined. The authors found that non-smokers working in pubs were a group that was highly exposed to tobacco smoke. However, ten years later a similar follow-up study was undertaken by Jarvis. 6 In this case, cotinine levels in the saliva of non-smoking bar staff in central and inner-london were measured. Jarvis found that although non-smokers working behind the bar in pubs remain an occupation group with high exposure to other people s tobacco smoke, the current levels of exposure are nevertheless marginally lower when compared to ten years previously. Irish Study of ETS exposure of bar staff According to page 33 of the expert report, the only Irish study to examine ETS exposure found that carbon monoxide levels were considerably 5 Jarvis M, Foulds J and Feyerband C (1992) Exposure to passive smoking among bar staff. British Journal of Addiction 87: Jarvis, M (2001). Quantitative survey of exposure to other people s smoke in London bar staff. (SmokeFree London) 11

13 higher than the outdoor background levels in 14 bars in Galway. 7 Among the key findings of the study were that bar ventilation systems (13 out of 14 bars) were unable to maintain environmental tobacco smoke (ETS) at low levels. This paper was presented at the International Conference on Indoor Air Quality and Climate on the morning of July 2nd, Finnish Study Ventilation techniques substantially reduce exposure to ETS However, it is extremely interesting to note that at the same Conference in which the preceding Irish study was presented, a Finnish report 8 was outlined to the audience immediately before the Irish one. Among the authors were two people from the Finnish Institute of Occupational Health. In contrast, it found that:! Ventilation techniques enable significantly to reduce employees exposure to ETS in hospitality facilities where smoking is permitted. The Finnish study began by accepting that hospitality workers have a high risk of exposure to environmental tobacco smoke at work. However, the study presents an integrated bar solution that provides both air curtain and protection air functions as a solution to combat the high exposure levels. Moreover, an air jet blowing from the counter level forms an air curtain thus preventing tobacco smoke entering the work area. The study shows that, with this especially designed bar local ventilation solution, even lower exposures to ETS can be obtained in smoking area workplaces than in non-smoking areas. Finnish Study Segregated areas / ventilation are effective means to reduce ETS in restaurants and bars Another Finnish study 9 presented at the International Conference on Indoor Air Quality and Climate examined the effects of amendments to 7 Mulcahy, M and JL Repace (2002). Passive smoking exposure and risk for Irish bar staff. Proceedings of Indoor Air 2002, the 9th International Conference on Indoor Air Quality and Climate, Monterey, California. 8 Hyvarinen M, Hagstrom K, Gronvall I and Hynynen P (2002). Reducing bartenders exposure to ETS by a local ventilation field evaluation of the solution. Proceedings of Indoor Air 2002, the 9th International Conference on Indoor Air Quality and Climate, Monterey, California. 9 Hyvarinen M, Johnsson T, Tuomi T, Rothberg M, Mielo T and Reijula K (2002). Control of exposure to environmental tobacco smoke in restaurants and bars. 12

14 the Finnish Tobacco Act in On March 1st, 2000 the Finnish Tobacco Act was amended to include restrictions on smoking in restaurants and bars. Under the amendments, establishments were required to reserve a maximum of 50% of their service area for smokers, and the spreading of tobacco smoke into non-smoking areas had to be prevented. Furthermore, the working areas at bar counters had to be smoke-free. The researchers studied sixteen restaurants and bars before and after these amendments were introduced. The researchers found that the average airborne nicotine concentration corrected with smoked cigarettes was lower in 9 (out of 16) establishments after the introduction of the Act. At bar desks the nicotine concentration was lower in 10 establishments. Improvements in the ETS levels were seen in establishments that had introduced changes into the ventilation system. The authors conclude that when placing non-smoking areas in existing establishments, knowledge about the ventilation is of utmost importance. Summary of Review It is evident that a close review of the papers cited in the expert group s report reveals that substantial reductions in ETS exposure to employees can be achieved via ventilation techniques and / or designated smoking and non-smoking areas. Indeed, aside from the studies outlined above (which are all either directly cited or directly associated with the research quoted in the expert group s report), there are other papers that have concluded that smoking restrictions are successful in reducing employee exposure to ETS. For example, Brauer and Mannetje 10 tested the effectiveness of restaurant smoking restrictions in three types of sites (smoke-free, smokingrestricted, and smoking un-restricted) and also concluded that smoking restrictions reduce ETS exposure in restaurants. Empirical research is ongoing in this area, and in optimal ventilation techniques. However, there appears to be a general acceptance that substantial reductions in ETS exposure for employees can be achieved without resort to a total ban on smoking in hospitality premises. 10 Brauer M and Mannetje A (1998). Environmental tobacco smoke exposure. AJPH. 1998; 88:

15 ADVERSE HEALTH EFFECTS OF A COMPLETE SMOKING BAN IN BARS Causes some cigarette-deprived smoking patrons to abuse alcohol Creates moods conducive to disorderly conduct on premises Increases the intensity of smoking in the home One of the principal objectives of the proposed smoking ban in the hospitality industry is to protect employees and non-smoking patrons from the frequently cited adverse effects of ETS. The ban would also be one of a variety of measures designed to discourage an uptake in smoking and indeed to encourage smokers to kick their habit. However, even if there is agreement that a ban is the optimal means of decreasing exposure to ETS and that it successfully discourages smoking, does this necessarily mean that such a policy increases the general health of smokers and nonsmokers in all circumstances? Surprisingly, the answer may actually be No. Consider, specifically, the case of a smoking ban in bars. Evidence that a ban on smoking in bars can lead to alcohol abuse by cigarette-deprived patrons As most people would observe, smoking and drinking go hand-in-hand and there is a variety of medical, psychological and economic evidence explaining their linked consumption. One explanation of this close relationship is particularly relevant when assessing any decision to ban smoking from bars, specifically the fact that both products release a chemical called dopamine in the brain. After reaching the brain, nicotine causes the release of dopamine, which is responsible for a sense of pleasure or reward. Alcohol also leads to the release of dopamine, but without the negative side effects attributed to nicotine intake (if alcohol is consumed moderately and sensibly). However, the implementation of a complete smoking ban may encourage cigarette-deprived individuals to abuse alcohol in order to reach the same pleasure levels that combined smoking and drinking can provide. In other words, the prohibition of cigarettes from a bar can lead to the potential abuse by individuals of the primary product at hand that bars provide alcoholic beverages. As any smokers will readily admit, their rate of consumption of alcohol speeds up when they are deprived of their nicotine. In essence, many smokers would simply divert their spending away from smoking to the unhealthy activity of alcohol abuse. 14

16 Unfortunately, alcohol abuse, in turn, can lead to a multitude of other problems that will also impact third parties, in the same vein that Environmental Tobacco Smoke (ETS), or second hand smoke, is said to impact non-smokers. In this regard, there may be a greater likelihood of criminal or disorderly conduct on or near the bar premises. Also, misuse of alcohol can lead to drink driving crashes and other such accidents. Additional evidence of the potential for alcohol abuse resulting from a smoking ban is derived from the economics literature. Decker and Schwartz 11 have shown that higher cigarette prices increase drinking while higher alcohol prices decrease smoking participation (a positive impact of higher alcohol prices). According to the authors, this relationship can be explained by the fact that drinking may be complementary with social smoking. Thus higher alcohol prices lead some people to stop drinking and since the situation cue for smoking is removed, they stop smoking also. However, an increase in the price of cigarettes leads people to stop smoking, inducing greater stress among the now former smokers, who turn to alcohol for relief. Expanding this argument, it is clear that a smoking ban in pubs would lead smoker patrons on the premises to drink more. Creates moods that can lead to disorderly conduct It is also noteworthy that in a social setting, such as a pub, the potential for disorderly conduct can also arise merely from the forced absence of smoking among otherwise regular smokers (leaving aside the contribution of potential alcohol abuse). Moreover, many people smoke in order to reduce stress, particularly in social settings such as in pubs. A recent study by psychologist Andy Parrott 12 highlighted that regular smokers experience periods of heightened stress between cigarettes, and smoking briefly restores their stress levels to normal. Such negative moods and irritability can clearly be a precursor or contributor to potential disorderly conduct in pubs if smoking patrons were prohibited from pursuing their smoking activities. Indeed, within six months of a complete ban on smoking in California bars in 1998, many newspaper reports carried 11 Decker, S., and A. Schwartz (2000). Cigarettes and Alcohol: Substitutes or Complements?. NBER Working Paper Parrott, Andy C. "Does Cigarette Smoking Cause Stress?" American Psychologist, Vol. 54, No

17 headlines claiming that more fights were occurring on licensed premises that enforced the ban. 13 Potentially increases intensity of smoking in the home, exposing minors to the effects of ETS In addition, cigarette-deprived individuals may increase the intensity of their smoking in the home, either before or after their trip to the pub (if smoking is prohibited in the pub). This has two effects. Firstly, more smoking in the home may only serve to encourage the same behaviour by smokers children. In 1992, a study by Karen Conrad 14 and her colleagues found that family and friends are the major determinants of whether the young smoke. Secondly, all the evidence of ETS points to long-term exposure in the home as the principal problem. Therefore, children become more exposed and this would certainly run contrary to the desired impact of the ban. SMOKING BANS AND CONFLICTING DUTIES OF HOTEL & BAR OWNERS Enforcement of Smoking Ban vs. Propensity for Street Disorder An inevitable outcome of a ban on smoking is that people will go outside to smoke. The numbers of people leaving bar areas to stand outside could be quite significant in some instances, leading to large groups gathering outside such premises. People movements like this can lead to potentially dangerous situations on the streets from a couple of standpoints: 1) People are in direct physical danger when standing in groups on narrow streets with active traffic on the roads, especially when they have consumed alcohol. 2) Hotels and bars have little or no control over patrons outside of their establishments and hence there is an increased likelihood of 13 See, for example: "Smoke-free bars report fewer tips and more fights." San Francisco Chronicle, May 2, "Bars' woes blamed on no-smoking law. Fights up, business down, trade group says." Sacramento Bee, May 1, Conrad, Karen M., Brian R. Flay, and David Hill (1992). Why Children Start Smoking Cigarettes: Predictors of Onset. British Journal of Addiction 87:

18 aggressive behaviour (that could have been averted on the premises). Furthermore, consider the Criminal Justice (Public Order) Bill, 2002 that is intended to curb the problem of late night street violence and disorder associated with alcohol abuse. Under the Act, Gardaí will have the power to apply to the District Court for a Closure Order against a premises that is associated with a disturbance or nuisance. This Order can impose restrictions on the opening hours of the premises in question and the period of closure can range from hours to days or longer. Unfortunately, the enforcement of a smoking ban, by the mere act of constantly pushing smoking patrons outside, can in itself contribute to street disturbance or nuisance. Hence, the responsibility of the hotel or bar owner to enforce a smoking ban is in conflict with his additional legal responsibility to curb street violence or disorder near his premises. Enforcement of Smoking Ban vs. Environmental Issues With people standing outside bars to smoke on a continual basis, there is also a conflict with environmental noise responsibilities. If such gatherings cause reasonable annoyance to nearby residents, then increased incidents of noise complaints and related legal actions from neighbours would become inevitable. Additionally, there is also the prospect of more litter on the street as patrons discard their cigarette boxes. Enforcement of Smoking Ban vs. Responsibility to run orderly house As highlighted already, the enforcement of a smoking ban can lead some cigarette-deprived individuals to abuse alcohol. Furthermore, according to the psychology literature, negative moods, tension and irritability occur during periods of nicotine depletion between cigarettes. Both of these factors mean that the enforcement of a smoking ban can create an environment conducive to disorderly conduct in pubs. Indeed, there is evidence from California that more fights broke out on licensed premises following the introduction of a smoking ban in that State s bars in However, the Intoxicating Liquor Act, 1988; Courts of Justice Act, 1924; Licensing Act, 1872; and Spirits Ireland Act 1854 require bar owners to run an orderly house. Hence, a smoking ban would also set the duties or responsibilities of the hotel / bar owner into conflict, i.e., the publican s 17

19 obligation to run an orderly house versus his obligation to implement a smoking ban (that would be conducive to setting the scene for disorderly behaviour). Enforcement of Smoking Ban vs. Possible Fire Hazards The banning of smoking indoors can ironically create fire risks that hitherto did not exist. Moreover, in the USA the banning of smoking indoors also led to the banning of smoking outdoors, specifically by building entrances. Earlier this year, in a university in Georgia smoking had to be banned within 20 feet of building entrances. The ban was to counter the fire hazard created by numerous false alarms because of smoking incidents. Also, the fact that smoking groups were effectively obstructing or congregating around exits was deemed a health hazard in itself. Enforcement of Smoking Ban vs. Civil Liberties Forcing law-abiding patrons, perhaps elderly people who have smoked for a lifetime, to go out into the freezing cold or rain during winter months would be seen by some as an action of incivility more pathological than the effects of ETS exposure. Enforcement of Smoking Ban vs. Staff Responsibilities A smoking ban can have negative effects on the morale and stress levels of staff who are smokers. There may be an unwillingness of smokers to work overtime or beyond the basic requirements of their contract of employment. There is also a public image problem for hotels as expelling staff outside to smoke simply does not look good. The Social Impact of a Smoking Ban Because of the expanded social role of bars in this country vis-à-vis other countries, legislation prohibiting smoking in bars could damage the fabric of socialising in Ireland. Such legislation might encourage smokers to socialise only within their homes, thereby leading to a loss of community and an increasing sense of isolation. This would particularly 18

20 be the case for those in the lower socioeconomic groups, who smoke at a higher rate than others. These less well off members of society will be disproportionately adversely affected by any legislation that would remove their right to smoke in a public house. The local, whether it be a stand-alone bar or in a hotel, is currently unique in that it is where one goes to escape the very hassles of a bureaucracy-laden society - it would be unfortunate to change its character by regimenting the pub and leaving no other public refuge for those who smoke. Furthermore, there is empirical evidence that customers do not support a ban on smoking in pubs, as it is often the case that non-smokers willingly accompany and sit with smokers in a pub. A Galway pub, An Tobar, which became Ireland s first complete non-smoking pub in 1998, had to reverse its policy due to the resulting fall-off in customers. Economic Impact of a Smoking Ban The hospitality industry is a major contributor to the economy and employment. It is also acknowledged in many international studies that smokers may have higher levels of patronage to hospitality venues, particularly bars, and spend more on each visit. Moreover, as there is a high correlation between those who drink and smoke, there is obviously a substantial correlation between those who frequent bars and those who smoke. Hence, there is widespread concern among the industry that businesses could be ruined and employees laid off should a smoking ban be introduced. Opponents of this view argue that any loss in revenue due to reduced smoking customers will be offset by increased patronage from people who don t currently visit these establishments because of the existence of ETS. It is contended that in the adjustment process, the various businesses affected by the ban would be no worse off, and perhaps be even better off. However, this argument does not consider that a much greater volume of non-smoking customers will be required to patronize the affected 19

21 premises. It is unlikely that non-smokers, even though larger in number, would make enough additional visits or spend more per visit to offset the decreases that would occur among smokers. In the meantime, those smokers that leave will probably smoke just as much as before but elsewhere; and because of savings from lower spending in the affected venues, will have more discretionary income to do it. It should also be noted that any unilateral move by Ireland to introduce a smoking ban in all bars and hospitality venues could disadvantage us as a tourist destination (with visitors who wish to smoke without such restrictions). Compliance / Enforcement Problems It would be impossible to police some 11,000 Irish hotels and bars for compliance with no-smoking regulations. When similar legislation was introduced to California, there were huge non-compliance problems. Under the U.S. legislation, bar owners were required to post no-smoking signs near the bar s entrance, provide no ash trays, and notify those who lit up that they were in violation of state law and ask them to extinguish their cigarettes. Unscrupulous bar owners posted signs in Vietnamese and provided shot glasses as ashtrays. Those pubs that do not comply with legislation, and enforcement of the legislation may prove unworkable, would be given an unfair advantage over complying establishments. It could eventually force some out of business completely while pushing others to increase the price of drink or to change their focus in order to improve margins. It would be extremely difficult if not impossible for hotels to enforce smoking bans in customer s bedrooms. 20

22 The Experience of California In California, the introduction of a smoking ban in bars in 1998 led to a combination of business and job losses, inconsistent enforcement and lack of compliance. Business & Job Losses Publicans complying with the smoking ban began to lose revenues and lay off employees. 15 Inconsistent Enforcement While pubs situated in areas that were heavily enforcing the ban suffered losses, in other areas where enforcement officials were not enforcing the ban, businesses that accommodated their smoking patrons experienced an increase in revenues. 16 Lack of Compliance Many bar owners and employees, local elected officials and enforcement agencies simply ignored the smoking ban altogether. 17 Even in areas where enforcement officials were issuing citations, many bar owners took 15 See, for example: "Smoking ban hurting business, bar owners claim." San Mateo County Times, July 18, "Bartenders say sales have dropped with smoking ban." Contra Costa Times, May 2, "Barley and Hopps shut its doors abruptly last week. Smoking ban blamed for slow down." San Mateo Weekly, July 22, "Smoking ban has sporadic policing." San Jose Mercury News, June 14, 1998 "Smoking ban not enforced, city says." Los Angeles Daily News, September 15, 1998 "Enforcement of smoking ban is uneven." Paradise Post, August 13, 1998 "Enforcement clouds issue of smoking ban. Only three citations issued since January 1." Los Angeles Times, September 21, 1998 "Smoking in bars isn't being punished." West County Times, September 23, "Fresno bar smoking not 'priority.'" Fresno Bee, November 30, 1998 "Ban on bar smoking has little effect, bars defying smoking ban." Los Angeles Daily News, September 18, 1998 "Many blowing smoke at Jan. 1 law. Little action against bars where lighting up occurs." Long Beach Press Telegram, September 23, 1998 "Bars blow smoke in face of ban. Many owners are trying various strategies to sidestep the law." Orange County Register, October 17, 1998 "City bars gaining a reputation for flouting state law." San Francisco Chronicle, November 30, 1998 "What smoking ban?.. Californians puff on, despite ban." Associated Press, September 24,

23 their chances of getting fined rather than losing customers and revenues. For example, a survey conducted by California's Department of Health Services in 1998 showed that 52.5% of bar owners and employees openly acknowledged that they were not complying with the ban. Some pubs that did comply with the legislation handed out free packs of cigarettes each day to smoking patrons who were not allowed to smoke on the premises. The Need for Government Consistency Aside from pure health issues, some of those calling for a ban on smoking in pubs would point to the health care costs of treating smoking-related diseases, which are borne by smokers and non-smokers alike in society. However, consider those who pursue a sedentary lifestyle and do not engage in physical exercise, many of whom suffer obesity-related diseases as a result. Economists Willard G. Manning, et al. 18 argue that Surprisingly, the lifetime external costs of a sedentary life-style are actually higher than the external cost of smoking. In addition, Oxford epidemiologists Sir Richard Doll and Richard Peto 19 found that diet, and in particular fats, contribute more to deaths from cancer than tobacco (35% vs. 30%). Indeed, there is a wide range of emerging evidence that obesity may be worse than smoking. Therefore, if government is consistent in its tackling of negative externalities, then, in addition to interventions such as banning smoking from pubs (notwithstanding the questionable wisdom of such a measure), government should engage in similar policies in other industries. For example, the government must consider measures like banning fatty foods from fast food outlets or taxing them at many times the rate they are currently taxed. Consider, also, the case of mobile phones. There are increasing fears that mobile phones may cause excessive electro-magnetic radiation (EMR) on the body, possibly causing neurological disorders, changes in the immune 18 Willard G. Manning, Emmet B. Keeler, Joseph P. Newhouse, Elizabeth M. Sloss, and Jeffrey Wasserman (1991) The Costs of Poor Health Habits. A RAND Study (Cambridge: Harvard University Press). 19 Doll, Richard, and Richard Peto (1981). The Causes of Cancer: Quantitative Estimates of Avoidable Risks of Cancer in the United States Today. Journal of the National Cancer Institute 66:

24 system and short-term memory problems. The question then arises as to whether mobile phones should be banned from work and public places because not only are they potentially damaging to users health, but they also produce noise pollution that affects third parties. Property Rights and Smoking Bans Since much of the epidemiological evidence about the negative health effects of second hand smoke relates to long-term exposure in the home, the fact that this is the one place exempted from proposed smoking bans suggests an outstanding concern for property rights. While bars invite the public to enter, the premises are nevertheless private property. Government restrictions on what legal activities may go on inside them, amount -- at least in a broad sense -- to what is sometimes referred to as "takings." In this sense, forcing the wishes of anti-smokers on every pub operator and his customers "takes" some of the value of the publican s business -- of his property. In essence, such a restriction amounts to a limited confiscation of private property and can only be constitutionally justified on the grounds that the public good benefits are sufficient to justify such an infringement. However, given that (1) The banning of smoking from pubs could lead to another serious problem which would impact both smokers and non-smokers alike, i.e., alcohol abuse, and (2) Feasible alternatives to a smoking ban exist, e.g., segregation of smokers and non-smokers or a voluntary code of practice incorporating the installation of ventilation machines, then the implementation of such a ban would amount to excessive interference by the State. Where a the business of a hotel or licensed premises is destroyed due to a smoking ban, it is therefore conceivable that the law could be challenged as an unwarranted taking of the owner's property rights and right to earn a livelihood. 23

25 Summary & Recommendations Given 1) ventilation techniques and segregated smoking and nonsmoking areas are shown to substantially reduce exposure to ETS, and 2) complete smoking bans may be counterproductive, unenforceable, and inherently conflicting with other proprietor responsibilities; it would seem reasonable to amend the Tobacco Act 2002 so that smoking is permitted in at least part of the pub/function area of hotels. A smoking exclusion zone at bar counters and where food is served could be incorporated into such an amendment. This would have the effect of accommodating smokers and non-smokers, both patrons and employees, in line with the nature of the hospitality business. Guest rooms at hotels should also be made exempt from smoking bans because patrons who smoke in their rooms, and who are therefore physically partitioned from non-smokers, do not appreciably impact nonsmokers via ETS. Along with such amendments, the industry could additionally adopt a voluntary code of practice that would allow customers to make informed choices regarding which premises they should patronise (according to ventilation technology employed and percentage of premises designated to smoking / non-smoking). Potential employees and customers could take such policies into account when deciding where to work or which pubs to patronise. These decisions could be helped by a simple requirement for publicans to post signs at the entrance and elsewhere stating the smoking policy employed and the type of ventilation system installed. Practices that might rotate staff in smoking and non-smoking areas would also be welcomed in such a code. After all, in order to maximise his profits, a hotel or bar owner must mediate between the demands of customers who want to smoke, and of those who do not wish to have smokers around. Depending on his clientele, on how much they are willing to pay to have their preferences catered to, and on the costs of satisfying them, the owner will decide to which extent he will segregate his customers. Indeed, the Tobacco Free Policy Review Group supports this very measure for pubs. In its recent document, the Group recommends A voluntary code of practice for pubs and licensed sporting facilities should be developed Tobacco Free Policy Review Group (2000). Towards a Tobacco Free Society, p

26 In the absence of such sensible amendments being made to the Act, the IHF would ask that tobacco regulations be introduced on the same timescale as our European neighbours so that Ireland does not experience a potential drop-off in tourists (who like to smoke). Furthermore, a smoking ban should only be introduced on a phased basis in premises, i.e., restaurants first, then lobby areas, and so on until bedrooms and bars are considered. In the interim, additional research on ventilation systems should be updated. 25