Nick Adkin Transcript
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What I want to do is go through the detail of the regulations, so just to be clear exactly where we're going with the regulations, what they set out, and what they mean in terms of enforcement and implementation.
Because many of you are from the business sector, and health is our business, I just wanted to put in context some of the things that Caroline has said about why smoking is important, and therefore why secondhand smoke is also important.
As Caroline said, there are 85,000 premature deaths each year in England due to smoking. In the UK the figure is 106,000. Smoking is the UK’s single biggest preventable killer. About one in five of all deaths are smoking-related. And smokers who die as a result of their smoking lose on average about 16 years of life. Importantly, smoking is the biggest single cause of health inequalities. Half of the difference in life expectancy between the highest social group and the lowest social group would disappear if the smoking rates were equalised, so there's a huge inequalities agenda around this.
So why is secondhand smoke particularly important? Well, as we've heard from the Chief Medical Officer, secondhand smoke is a killer. It contains over 4,000 chemicals, over 50 of which are cancer causing, and it causes an increase in risk of a number of conditions, particularly lung cancer and heart disease. Heart disease risk seems to increase enormously at very low exposures to secondhand smoke, through a mechanism which isn't well understood. Most importantly there is no safe level of exposure to secondhand smoke, and that is why ventilation, for instance, is not a solution to the health risks of secondhand smoke. The World Health Organisation is very clear, following a review with a document of thousands of pages, that SECONDHAND SMOKE is a known human carcinogen. There is also an international convention, which came into force two years ago, signed and ratified by the UK Government and 148 other countries, that sets out very clearly the clear evidence that secondhand smoke causes death and disability. And one last fact: 85% of secondhand smoke is colourless and odourless, so if somebody’s been smoking, even if the visible smoke has disappeared, the carcinogens and toxic chemicals are still there. Another reason why ventilation cannot eliminate the risks of secondhand smoke in enclosed environments.
So let’s move on to the nuts and bolts. I will go through some key points about the legislation.
The first thing is that this is Public Health legislation, not Worker Protection legislation, because this isn't just about working places, it’s about public places and workplaces.
Smokefree legislation prohibits the smoking of tobacco and anything that contains tobacco, and any other substance. So it applies to all manufactured cigarettes, hand-rolled cigarettes, pipes, including hookah pipes, whether or not the particular product being smoked is tobacco or not, cigars and herbal cigarettes. Anything that can be smoked is caught by this legislation, not just tobacco.
Premises will be smokefree only if they are enclosed or substantially enclosed. So it applies to all places of work that are used by more than one person. So a single operator, where nobody else works, and where the public don’t come in, and they work completely on their own, will not be required to be completely smokefree because there is no risk to other people. ‘Work’ includes voluntary work. Premises are considered to be open to the public if the public or sections of the public has access, whether by invitation or payment or not. And work in public vehicles will also be required to be smokefree, so this law really extends into every place you could probably think of as a workplace or a public place.
There are three key offences to be aware of, and this is the issue that concerns most businesses. There is the offence of the smoker themselves: the offence, for them, of smoking in a smokefree place; there is the offence of failing to prevent smoking in a smokefree place, which falls on anyone who controls or has control over, or manages the premises; and failing to display the necessary signage. The first court case in Scotland, which only happened in the last few days – nearly a year after the introduction of their legislation – was around signage. A particular person refused to put up the signage, and the prosecution was for the person not putting up the signage. He also was abusive and aggressive, and I think that probably precipitated the action. So it’s also an offence to obstruct an enforcement officer or provide a false or misleading statement.
The Health Act 2006 provides a number of regulation-making powers, and this is where the detail lies in the legislation. The Act actually bans smoking everywhere, and the regulations create the exemptions. Some of these regulations are still to be debated in Parliament, although they are all in the public domain. There are links to the smokefree legislation on the Smokefree England website.
And there are five sets of regulations.
The first are the Smoke-free Premises and Enforcement Regulations. These were made in December, so they are out and now final, although there is a Parliamentary process of waiting for them to go through a month’s stay. These set out what is meant by ‘enclosed’ and ‘substantially enclosed’, and who will be enforcing the smokefree legislation.
‘Enclosed’ means a roof and a perimeter that is wholly enclosed by walls. And when you do that calculation, you don’t include doors, windows or passageways; essentially if something can be closed, you consider it to be closed. ‘Substantially enclosed’ is a roof, plus a perimeter where the opening in the walls represents 50% or less of the total wall area. So that's commonly known as the 50% rule, and is pretty much exactly the same as in Scotland. Temporary structures, such as tents, are included. So if you have a marquee with walls that can be rolled down, and are rolled up, you will still be in an enclosed space; the legislation considers anything that can be rolled down or enclosed as rolled down. And a ‘roof’ includes fixed or movable structures that can cover all or part of the premises as roof, including, again, canvas awnings; so if an awning can come down, the legislation considers it to be down for the purposes of deciding whether it’s enclosed or substantially enclosed. In essence, if it can be enclosed, it will be considered to be enclosed.
Smokefree legislation will be enforced by local councils and Port Health Authorities. One question we are often asked is whether Health and Safety Officers are formal enforcement officers? They are not. They will be doing their health and safety checks, and if they are aware of activity going on which may not be compliant to the legislation they will pass on that information to the appropriate enforcement authorities at a local authority level. Principally enforcement will be the role of Environmental Health and some Trading Standards Officers. Local authorities will be helping to build compliance, and there was a Local Government Association conference yesterday, and I believe almost all of local authorities are well on the way to setting up groups to involve all of their key stakeholders locally. We have already funded a training package with senior environmental health officers in virtually all local authorities to cascade down the key messages, and to help people get prepared. So businesses can call the environmental health department of their council for advice.
The second set of regulations are on signs. They have been published in draft form but we are not intending to change them. They will be finalised on 16 March, at the end of a three-month period during which other European countries can comment on them. They set out requirements for no smoking signs that will be required in all smokefree premises, and vehicles, and they're slightly different for premises and vehicles.
We will make available signs that meet the regulation requirements free. Many people will want to design their own signs, but if you want a standard sign, then we will be providing those.
Whilst the signage requirements on premises are different to Scotland, they are, we believe, less onerous than Scottish requirements. So it’s an A5 sized-sign, with the symbol together with the words ‘It is against the law to smoke in these premises’. A sign only with a symbol can go on entrances which are only used by staff, as long as the main entrance has an A5 sign on it with the works. Also, smokefree premises within other smokefree premises should have a sign with the symbol at the entrance. So in a shopping mall with lots of businesses within it, the entrance to the shopping mall will need to have the A5 sign but everybody else can just have a symbol. The one additional point on this is you can change the words ‘in these premises’ to whatever particular premises it is, so ‘in this gym’, ‘in this [whatever name] pub’.
On smokefree vehicles, we're just requiring the sign with the no smoking symbols. Almost all public transport is now smokefree, so we are not requiring signage that goes particularly beyond what's already in place on those vehicles. I think the 70 millimetres reflects the requirements that are on taxis at the moment. That's about the minimum out there. They can of course be as big as you like, but this is the minimum. And the sign has to be in a prominent position in each compartment of the vehicle. It doesn't need to be on the compartment, just be visible within each compartment.
The third area is exemptions and vehicles. We published this very recently. This is one set of regulations that will be debated in both houses of Parliament. Exemptions include private accommodation, accommodation for guests, other residential accommodation, performers, specialist tobacconists, research and testing facilities, and my favourite, offshore platforms, where if you go outside you could blow up the platform so you have to have a room indoors.
Just to be clear, again, the intention is not to go into private space. Private dwellings will not be required to smokefree, except parts used solely as a place of work by more than one person, or where members of the public give or receive goods or services. So if you gave a piano lesson in your front room, and the piano was part of your living room, then you wouldn’t be caught. If you had a special room, where you provided that service, and that was what you used it for, then it would be. That's the distinction. There are clearly going to be blurs between those two, and it will be a matter of individual cases and the enforcement officer will need to make a decision.
Parts of the premises used in common with other premises, if they are open to the public, are covered by the legislation. So this is shared, communal areas, outside a private space. But the regulations will not restrict people from smoking in any part of their private dwelling used for work if the work is undertaken solely for personal care. Somebody living in a dwelling where, for example, people come in occasionally to do private care, assist with the domestic work, maintain the dwelling, or maybe to install, maintain or remove any service provided to the dwelling for the benefit of people living there. Also workmen and women who come in to do a particular job for a limited period of time. That is clearly a private space where somebody is coming in, and we don't want this legislation to extend into that area.
The limited exemptions provide for designated living accommodation in, for instance, hotels, guest houses, inns, hostels, members’ clubs, pubs where they have a few rooms for sleeping accommodation. Also designated rooms in care homes, hospices, prisons. A word about ‘specified research and testing facilities’: a lot of research activity goes on into emissions from tobacco products – for instance we are legally required to test the carbon monoxide, tar and nicotine yields from cigarettes – which require smoking machines. We clearly need to be able to do that in this country so we have provided for testing facilities.
On mental health, we consulted on a compromise exemption, which provided an exemption, very long term, for mental health units for long-stay patients. We've changed that in the final decision to be just an extension for only one year for mental health facilities to become completely smokefree by 1st July 2008. They have a little longer because they have greater challenges, and they haven't been aware until now that they are going to be required to be completely smokefree.
Exemptions are also available for specialist tobacconists, shops for sampling of pipe tobacco, or cigars. Just to be clear on this, this does not refer to normal tobacconists, but designated ‘specialist tobacconists’ as defined in other legislation. These are a very limited number of shops where over 50% of the turnover is from pipe tobacco or cigars. So there are a few tens of them in the whole country. And it’s only for the sampling of the products.
Also performers, under strict conditions. So this is live performances only, not rehearsals, and where smoking is integral to the plot or the story or the activity. We are not requiring people to apply for an exemption, they have to satisfy themselves that they have met the conditions.
Enclosed vehicles should be smokefree at all times if they are used by members of the public, or a section of the public, or in the course of paid or voluntary work by more than one person. So it’s essentially applying the same rules to mobile place, a mobile workplace, as to a fixed workplace. Vehicles will not be required to be smokefree if they are used primarily for the private purpose of the person who owns it, or has a right to use it, which is not restricted. So if you have a company car, which is primarily used for your own use, and you're not limited to just a journey to and from work, or to and from delivery points, then it won't be caught. But normal work vehicles, like vans used for deliveries, will be caught.
The fourth regulation refers to ‘smoke-free penalties and discounted amounts’. This was published in draft form in July and we haven’t changed them at all, although they will need to be discussed and approved by Parliament. It provides for three sets of penalties. So for smoking in a smokefree place there could be a FPN (Fixed Penalty Notice) of £50, and a discounted amount of £30, but if you contest it, or if the Enforcement Officer thinks it’s serious enough to take straight to court, it could be a fine of up to £200. Failure to display no smoking signs carries a Fixed Penalty Notice of £200. There is a discount for early payment, and a fine of up to £1,000 if a case is contested and goes to court, or the Enforcement Officer decides it’s sufficiently serious to go straight to court. And thirdly, failing to prevent smoking in a smokefree place. No FPNs for that. It’s a court case, with a fine of up to £2,500. And just to be clear on who has the duty to prevent smoking in a smokefree vehicle, it is the driver; any person with management responsibilities with the vehicle; and any person in a vehicle who is responsible for the order and safety of the vehicle.
In summary, we are, I think, in the vanguard of an international movement. The number of areas, countries and jurisdictions where comprehensive smokefree legislation (i.e. legislation that doesn’t allow smoking rooms, which are allowed in, for instance, the forthcoming French legislation or the Italian legislation), is progressing very quickly across the world. Ireland, New Zealand, Norway, Uruguay, Scotland, California, first, of course, New York, and now, over 50% of the US population are covered by laws which prevent them being exposed to secondhand smoke. Queensland and Tasmania and more of the Australian states are coming on board, and different cities and provinces in Canada.
Finally I just wanted to set out what I think success looks like. Very high and self-enforcing compliance; a low level of FPNs and court actions; high, and increasing public support (something we've seen in all jurisdictions where this is successfully introduced); and healthier public places and workplaces. And just to emphasise, the low level of FPNs and court actions is really important. We want this to be self-enforcing, not forced on people through court action and FPNs.
So thank you very much.
Back
What I want to do is go through the detail of the regulations, so just to be clear exactly where we're going with the regulations, what they set out, and what they mean in terms of enforcement and implementation.
Because many of you are from the business sector, and health is our business, I just wanted to put in context some of the things that Caroline has said about why smoking is important, and therefore why secondhand smoke is also important.
As Caroline said, there are 85,000 premature deaths each year in England due to smoking. In the UK the figure is 106,000. Smoking is the UK’s single biggest preventable killer. About one in five of all deaths are smoking-related. And smokers who die as a result of their smoking lose on average about 16 years of life. Importantly, smoking is the biggest single cause of health inequalities. Half of the difference in life expectancy between the highest social group and the lowest social group would disappear if the smoking rates were equalised, so there's a huge inequalities agenda around this.
So why is secondhand smoke particularly important? Well, as we've heard from the Chief Medical Officer, secondhand smoke is a killer. It contains over 4,000 chemicals, over 50 of which are cancer causing, and it causes an increase in risk of a number of conditions, particularly lung cancer and heart disease. Heart disease risk seems to increase enormously at very low exposures to secondhand smoke, through a mechanism which isn't well understood. Most importantly there is no safe level of exposure to secondhand smoke, and that is why ventilation, for instance, is not a solution to the health risks of secondhand smoke. The World Health Organisation is very clear, following a review with a document of thousands of pages, that SECONDHAND SMOKE is a known human carcinogen. There is also an international convention, which came into force two years ago, signed and ratified by the UK Government and 148 other countries, that sets out very clearly the clear evidence that secondhand smoke causes death and disability. And one last fact: 85% of secondhand smoke is colourless and odourless, so if somebody’s been smoking, even if the visible smoke has disappeared, the carcinogens and toxic chemicals are still there. Another reason why ventilation cannot eliminate the risks of secondhand smoke in enclosed environments.
So let’s move on to the nuts and bolts. I will go through some key points about the legislation.
The first thing is that this is Public Health legislation, not Worker Protection legislation, because this isn't just about working places, it’s about public places and workplaces.
Smokefree legislation prohibits the smoking of tobacco and anything that contains tobacco, and any other substance. So it applies to all manufactured cigarettes, hand-rolled cigarettes, pipes, including hookah pipes, whether or not the particular product being smoked is tobacco or not, cigars and herbal cigarettes. Anything that can be smoked is caught by this legislation, not just tobacco.
Premises will be smokefree only if they are enclosed or substantially enclosed. So it applies to all places of work that are used by more than one person. So a single operator, where nobody else works, and where the public don’t come in, and they work completely on their own, will not be required to be completely smokefree because there is no risk to other people. ‘Work’ includes voluntary work. Premises are considered to be open to the public if the public or sections of the public has access, whether by invitation or payment or not. And work in public vehicles will also be required to be smokefree, so this law really extends into every place you could probably think of as a workplace or a public place.
There are three key offences to be aware of, and this is the issue that concerns most businesses. There is the offence of the smoker themselves: the offence, for them, of smoking in a smokefree place; there is the offence of failing to prevent smoking in a smokefree place, which falls on anyone who controls or has control over, or manages the premises; and failing to display the necessary signage. The first court case in Scotland, which only happened in the last few days – nearly a year after the introduction of their legislation – was around signage. A particular person refused to put up the signage, and the prosecution was for the person not putting up the signage. He also was abusive and aggressive, and I think that probably precipitated the action. So it’s also an offence to obstruct an enforcement officer or provide a false or misleading statement.
The Health Act 2006 provides a number of regulation-making powers, and this is where the detail lies in the legislation. The Act actually bans smoking everywhere, and the regulations create the exemptions. Some of these regulations are still to be debated in Parliament, although they are all in the public domain. There are links to the smokefree legislation on the Smokefree England website.
And there are five sets of regulations.
The first are the Smoke-free Premises and Enforcement Regulations. These were made in December, so they are out and now final, although there is a Parliamentary process of waiting for them to go through a month’s stay. These set out what is meant by ‘enclosed’ and ‘substantially enclosed’, and who will be enforcing the smokefree legislation.
‘Enclosed’ means a roof and a perimeter that is wholly enclosed by walls. And when you do that calculation, you don’t include doors, windows or passageways; essentially if something can be closed, you consider it to be closed. ‘Substantially enclosed’ is a roof, plus a perimeter where the opening in the walls represents 50% or less of the total wall area. So that's commonly known as the 50% rule, and is pretty much exactly the same as in Scotland. Temporary structures, such as tents, are included. So if you have a marquee with walls that can be rolled down, and are rolled up, you will still be in an enclosed space; the legislation considers anything that can be rolled down or enclosed as rolled down. And a ‘roof’ includes fixed or movable structures that can cover all or part of the premises as roof, including, again, canvas awnings; so if an awning can come down, the legislation considers it to be down for the purposes of deciding whether it’s enclosed or substantially enclosed. In essence, if it can be enclosed, it will be considered to be enclosed.
Smokefree legislation will be enforced by local councils and Port Health Authorities. One question we are often asked is whether Health and Safety Officers are formal enforcement officers? They are not. They will be doing their health and safety checks, and if they are aware of activity going on which may not be compliant to the legislation they will pass on that information to the appropriate enforcement authorities at a local authority level. Principally enforcement will be the role of Environmental Health and some Trading Standards Officers. Local authorities will be helping to build compliance, and there was a Local Government Association conference yesterday, and I believe almost all of local authorities are well on the way to setting up groups to involve all of their key stakeholders locally. We have already funded a training package with senior environmental health officers in virtually all local authorities to cascade down the key messages, and to help people get prepared. So businesses can call the environmental health department of their council for advice.
The second set of regulations are on signs. They have been published in draft form but we are not intending to change them. They will be finalised on 16 March, at the end of a three-month period during which other European countries can comment on them. They set out requirements for no smoking signs that will be required in all smokefree premises, and vehicles, and they're slightly different for premises and vehicles.
We will make available signs that meet the regulation requirements free. Many people will want to design their own signs, but if you want a standard sign, then we will be providing those.
Whilst the signage requirements on premises are different to Scotland, they are, we believe, less onerous than Scottish requirements. So it’s an A5 sized-sign, with the symbol together with the words ‘It is against the law to smoke in these premises’. A sign only with a symbol can go on entrances which are only used by staff, as long as the main entrance has an A5 sign on it with the works. Also, smokefree premises within other smokefree premises should have a sign with the symbol at the entrance. So in a shopping mall with lots of businesses within it, the entrance to the shopping mall will need to have the A5 sign but everybody else can just have a symbol. The one additional point on this is you can change the words ‘in these premises’ to whatever particular premises it is, so ‘in this gym’, ‘in this [whatever name] pub’.
On smokefree vehicles, we're just requiring the sign with the no smoking symbols. Almost all public transport is now smokefree, so we are not requiring signage that goes particularly beyond what's already in place on those vehicles. I think the 70 millimetres reflects the requirements that are on taxis at the moment. That's about the minimum out there. They can of course be as big as you like, but this is the minimum. And the sign has to be in a prominent position in each compartment of the vehicle. It doesn't need to be on the compartment, just be visible within each compartment.
The third area is exemptions and vehicles. We published this very recently. This is one set of regulations that will be debated in both houses of Parliament. Exemptions include private accommodation, accommodation for guests, other residential accommodation, performers, specialist tobacconists, research and testing facilities, and my favourite, offshore platforms, where if you go outside you could blow up the platform so you have to have a room indoors.
Just to be clear, again, the intention is not to go into private space. Private dwellings will not be required to smokefree, except parts used solely as a place of work by more than one person, or where members of the public give or receive goods or services. So if you gave a piano lesson in your front room, and the piano was part of your living room, then you wouldn’t be caught. If you had a special room, where you provided that service, and that was what you used it for, then it would be. That's the distinction. There are clearly going to be blurs between those two, and it will be a matter of individual cases and the enforcement officer will need to make a decision.
Parts of the premises used in common with other premises, if they are open to the public, are covered by the legislation. So this is shared, communal areas, outside a private space. But the regulations will not restrict people from smoking in any part of their private dwelling used for work if the work is undertaken solely for personal care. Somebody living in a dwelling where, for example, people come in occasionally to do private care, assist with the domestic work, maintain the dwelling, or maybe to install, maintain or remove any service provided to the dwelling for the benefit of people living there. Also workmen and women who come in to do a particular job for a limited period of time. That is clearly a private space where somebody is coming in, and we don't want this legislation to extend into that area.
The limited exemptions provide for designated living accommodation in, for instance, hotels, guest houses, inns, hostels, members’ clubs, pubs where they have a few rooms for sleeping accommodation. Also designated rooms in care homes, hospices, prisons. A word about ‘specified research and testing facilities’: a lot of research activity goes on into emissions from tobacco products – for instance we are legally required to test the carbon monoxide, tar and nicotine yields from cigarettes – which require smoking machines. We clearly need to be able to do that in this country so we have provided for testing facilities.
On mental health, we consulted on a compromise exemption, which provided an exemption, very long term, for mental health units for long-stay patients. We've changed that in the final decision to be just an extension for only one year for mental health facilities to become completely smokefree by 1st July 2008. They have a little longer because they have greater challenges, and they haven't been aware until now that they are going to be required to be completely smokefree.
Exemptions are also available for specialist tobacconists, shops for sampling of pipe tobacco, or cigars. Just to be clear on this, this does not refer to normal tobacconists, but designated ‘specialist tobacconists’ as defined in other legislation. These are a very limited number of shops where over 50% of the turnover is from pipe tobacco or cigars. So there are a few tens of them in the whole country. And it’s only for the sampling of the products.
Also performers, under strict conditions. So this is live performances only, not rehearsals, and where smoking is integral to the plot or the story or the activity. We are not requiring people to apply for an exemption, they have to satisfy themselves that they have met the conditions.
Enclosed vehicles should be smokefree at all times if they are used by members of the public, or a section of the public, or in the course of paid or voluntary work by more than one person. So it’s essentially applying the same rules to mobile place, a mobile workplace, as to a fixed workplace. Vehicles will not be required to be smokefree if they are used primarily for the private purpose of the person who owns it, or has a right to use it, which is not restricted. So if you have a company car, which is primarily used for your own use, and you're not limited to just a journey to and from work, or to and from delivery points, then it won't be caught. But normal work vehicles, like vans used for deliveries, will be caught.
The fourth regulation refers to ‘smoke-free penalties and discounted amounts’. This was published in draft form in July and we haven’t changed them at all, although they will need to be discussed and approved by Parliament. It provides for three sets of penalties. So for smoking in a smokefree place there could be a FPN (Fixed Penalty Notice) of £50, and a discounted amount of £30, but if you contest it, or if the Enforcement Officer thinks it’s serious enough to take straight to court, it could be a fine of up to £200. Failure to display no smoking signs carries a Fixed Penalty Notice of £200. There is a discount for early payment, and a fine of up to £1,000 if a case is contested and goes to court, or the Enforcement Officer decides it’s sufficiently serious to go straight to court. And thirdly, failing to prevent smoking in a smokefree place. No FPNs for that. It’s a court case, with a fine of up to £2,500. And just to be clear on who has the duty to prevent smoking in a smokefree vehicle, it is the driver; any person with management responsibilities with the vehicle; and any person in a vehicle who is responsible for the order and safety of the vehicle.
In summary, we are, I think, in the vanguard of an international movement. The number of areas, countries and jurisdictions where comprehensive smokefree legislation (i.e. legislation that doesn’t allow smoking rooms, which are allowed in, for instance, the forthcoming French legislation or the Italian legislation), is progressing very quickly across the world. Ireland, New Zealand, Norway, Uruguay, Scotland, California, first, of course, New York, and now, over 50% of the US population are covered by laws which prevent them being exposed to secondhand smoke. Queensland and Tasmania and more of the Australian states are coming on board, and different cities and provinces in Canada.
Finally I just wanted to set out what I think success looks like. Very high and self-enforcing compliance; a low level of FPNs and court actions; high, and increasing public support (something we've seen in all jurisdictions where this is successfully introduced); and healthier public places and workplaces. And just to emphasise, the low level of FPNs and court actions is really important. We want this to be self-enforcing, not forced on people through court action and FPNs.
So thank you very much.
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