18 Aug 2008
Under Article 8.1 of the FCTC, ‘Parties recognize that scientific evidence has unequivocally established that exposure to tobacco smoke causes death, disease and disability’. Parties therefore agree to adopt and implement, in areas of national jurisdiction (and, at other jurisdictional levels, to actively promote the adoption and implementation of), effective legislative, executive, administrative and/or other measures providing for protection from exposure to tobacco smoke in indoor workplaces, public transport, indoor public places and, as appropriate, other public places. Such protection must be in place five years after the FCTC comes into force for a Party.
To assist Parties in implementing effective measures providing for protection from exposure to tobacco smoke, the Conference of the Parties (COP) to the FCTC has adopted guidelines for implementation of Article 8. The purpose of the Guidelines is to assist Parties in implementing their obligations by providing guidance on best practices. The Guidelines contain ‘agreed upon statements of principles and definitions of relevant terms, as well as agreed upon recommendations for the steps required to satisfy the obligations of the Convention’.
Key principles and recommendations include:
- Article 8 is grounded in fundamental human rights . The right to breathe clean air is an extension of the recognized right to life and the highest attainable standard of health, as recognized in the Constitution of the WHO, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of all Forms of Discrimination Against Women, the Convention on the Rights of the Child, and other international legal instruments; and as formally recognized in the Preamble to the FCTC itself.
- Legal protection, not voluntary measures . Protection from exposure to tobacco smoke requires the full backing of the law. While voluntary action by communities and businesses may serve to build support for smoke-free places, self-regulatory measures or voluntary agreements between governments and the private sector cannot fulfill a Party’s obligations under the FCTC.
- 100% smoke-free environments. Because of the nature of the threat to health posed by small particles and by gaseous and vapour phase toxins in tobacco smoke, strategies which permit the presence of lit tobacco in enclosed or substantially enclosed public places or workplaces, or on public transport, cannot protect against exposure to tobacco smoke. Ventilation, air filtration or designated smoking areas are not acceptable strategies. Only 100% smoke-free environments can effectively protect against exposure to tobacco smoke.
- Protect everyone . T he duty to protect people from tobacco smoke “extends to all persons, and not merely to certain populations” .
- Make protection universal. All indoor public places, all indoor workplaces (including vehicles used as places of work), all public transport, and outdoor or quasi-outdoor public places where appropriate (including all outdoor public places where tobacco smoke is a health hazard) should be 100% smoke-free.
- Provide universal protection as quickly as possible . If universal protection from exposure to tobacco smoke cannot be provided immediately, it should be provided within five years of entry into force of the FCTC for each Party.
- Draft legislation carefully . “In order to be effective, legislation should be simple, clear and enforceable” . Effective laws must not only prescribe evidence-based measures to protect health, but also provide a clear and comprehensive framework that will maximise compliance, ease enforcement, facilitate inspection and monitoring, and minimise the risk of confusion and legal challenge. The Guidelines include advice for defining key terms in order to ensure that legislation is comprehensive and effective. Key terms include:
- public places ;
- workplace ;
- public transport ; and
- enclosed or indoor .
- Educate and involve the public . Raising awareness among opinion leaders, key stakeholders and the general public about the need for legislation, with a focus on the harms caused by secondhand smoke exposure, is essential to effective legislative action . Where the public understands the health risks of tobacco smoke, smoke-free laws are popular and well respected, and are largely self-enforcing.
- Involve civil society as an active partner when developing, implementing and enforcing legislation. Experience from many jurisdictions confirms that civil society has a crucial role in building public support for smoke-free laws, in assisting with their implementation, and in ensuring compliance.
- Specify the duties of those responsible for compliance. To ensure legal accountability, responsibilities for compliance should be prescribed for both affected businesses and individual smokers. Enforcement should ordinarily focus on business establishments, placing responsibility for compliance on the owner, manager, or other person in charge of the premises, and clearly identifying the actions required.
- Set appropriate penalties. Legislation should specify monetary penalties for violations. Penalties should be sufficiently large to deter violations and should increase for repeated violations. Where appropriate, legislation may also allow for criminal penalties, and for administrative sanctions such as suspension of business licenses as “sanctions of last resort”.
- Ensure enforcement is systematic and strategic. Legislation should clearly identify authorities responsible for enforcement and should include a system for effective monitoring of compliance and prosecution of violations. Strong, strategic enforcement activities, particularly in the period immediately following the entry into force of smoke-free legislation, are critical. The community should be involved in enforcement, including through the establishment of an accessible system for reporting of violations.
- Future-proof the law. Scientific evidence on the health hazards of exposure to tobacco smoke continues to emerge, and knowledge of which measures offer effective protection continues to evolve. Against this dynamic background, it is important to ensure that laws can be revised and expanded as necessary — for example, through regulations or legislative amendments to strengthen the law and close loopholes.
- Monitor and evaluate the implementation of smoke-free laws. Monitoring and evaluation can help: increase political and public support for strengthening and extending legislation; inform and assist the efforts of other countries; and identify and publicize the tobacco industry’s efforts to undermine implementation of smoke-free legislation.
Smokefree Air Law Enforcement – Lessons from the Field [Adobe Acrobat PDF – 630.89 KB] guide.
The guide is a comprehensive package of inspection and enforcement strategies, protocols, and lessons learned from countries and sub-national jurisdictions that have successfully implemented smokefree policies. It is intended for tobacco control advocates, enforcement personnel and policymakers engaged in enforcement efforts in their countries.