DOI: 10.14457/tu.the.2015.435
title: Legal problem concerning non-smoker's health protection

description: ABSTRACTIn decades past, the topic of second-hand smoke was commonly mentioned in the medical profession.  Scientists stated that toxic chemicals in    second-hand smoke cause harm to people’s health and that there is also no safe level of exposure to second-hand smoke. Second-hand smoke contains a mixture of particulate matter and thousands of chemicals such as carcinogens and formaldehyde which are cancer-causing; it has harmful chemicals which are similar to those which smokers inhale. Since much research concerning the hazards of second-hand smoke are well-known, people are beginning to want to live in smoke-free society. Many rights were established to protect people from the hazard of second-hand smoke.    The right to live in healthy environment and the right to breathe clean air are two such rights.With this concern in mind, the World Health Organization (WHO) enacted The Framework Convention on Tobacco Control (FCTC) to protect people from the devastating health, social, environmental and economic consequences of tobacco consumption and especially exposure to tobacco smoke. The FCTC adopted guidelines on the protection from exposure to tobacco smoke by providing fundamental considerations and principles such as Principle 2, which provides that “All people should be protected from exposure to tobacco smoke. All indoor workplaces and indoor public places should be non-smoking areas.” In Thailand, to protect non-smokers’ health from exposure to tobacco smoke, the Thai government enacted the Non-Smokers’ Health Protection Act B.E. 2535 two decades ago. The law gives the power to the Minister to define               non-smoking areas and if smokers are smoking in non-smoking areas which are provided by law, they shall be subject to a fine not exceeding two thousand baht. However, exposure of second-hand smoke to non-smokers is not only restricted in non-smoking areas, but also the non-smoker who lives outside the non-smoking areas should have protected the rights to breath clean air by law similar to the people who also live in non-smoking areas. A protection for the right to breathe clean air should not restrict only in specific places but law should protect everyone equally. The purpose of this study is to study legal measures for the non-smoker’s health protection outside non-smoking areas, are which provide by law. Domestic and Foreign laws, theories of human rights and related international laws have been researched to see whether Thai law can protect non-smokers outside non-smoking areas from hazard of second-hand smoke and the justifications for doing so. If Thai laws are not capable of protecting non-smokers’ health outside non-smoking areas, research must be conducted to find the cause of this problem and to make improvements to the law. This study would be conducted as a qualitative research by researching and gathering related documents from various information sources, then analyzing the data and compiling with the content of the study in each chapter.The research finds that Thailand is a country which has recognized         the problem concerning the dangers of second-hand smoke for a long time, but legal measures under the Non-Smokers’ Health Protection Act B.E. 2535 did not protect non-smokers’ health beyond the places outside non-smoking areas which are provided by law despite the fact that non-smokers who live outside the non-smoking areas should have their rights to breathe clean air protected by law, just as the people who live in non-smoking areas do. Moreover, the Non-Smoker’s Health Protection Act B.E. 2535 has as its aim to protect the health of non-smokers, especially children from cigarette smoke. However, many children are still being exposed to second-hand smoke in houses and cars, not being protected by this law and the direct impact second-hand smoke has on children in these areas. Furthermore, the legal enforcement process under the Non-Smokers’ Health Protection Act B.E. 2535 which was stated to be the responsibility of the inquiring officer cannot be carried out in practice because of the nature of smoking, since smokers will not take a long time to smoke, and when the smoking is finished, the smoker quickly leaves the area. If the enforcement of the Non-Smoker’s Health Protection Act of B.E. 2535 is not possible, the law will not achieve its objective, which is to protect the non-smoker from the hazards of     second-hand smoke. According to the study, the writer recommends that in order to protect non-smokers’ right to breathe clean air outside non-smoking areas, the law should specify the protection of non-smokers’ health outside non-smoking areas in the Non-Smokers’ Health Protection Act B.E. 2535 so that it is defined as “any areas which are not arrange to be a non-smoking area, smoking is allowed, except if such smoking is causing damage to life, body, health or infringing on any right of another person  shall result in a  fine under the law.” To protect children from the hazard of second-hand smoke in house and car, which are  private places, the Non-Smoker’s Health Protection Act of B.E. 2535 should be amended to protect cover areas beyond a house and a car in which there are children should be enacted  to protect children in a house and a car specifically.  For example, in case of car, the law may define that “smoking in any motor vehicle in which there is a minor (under 18 years of age) and regardless of whether the vehicle is in motion or at rest is prohibited by law.” And in case of house, the law may defined that “All units of a duplex or multi-family residence, including any associated exclusive-use enclosed areas or unenclosed areas in all indoor and outdoor such as a private balcony, porch, deck, or patio shall be designated places that protect the health of non-smokers and are declared tobacco-free areas. However, smoking areas can be established, if such areas are not located within, and are at least 100 feet from, enclosed areas primarily used by children and enclosed facilities for physical activity, such as playgrounds, swimming pools, and school campuses”.Moreover, for the effectiveness of law enforcement and to achieve the intention of the Non-Smokers’ Health Protection Act B.E. 2535, the law should give powers to the authorities to impose a fine by operating under the administrative procedure. The immediate and serious enforcement will make offenders fear wrongdoing and will lead to orderliness in the end. Furthermore, the law should impose the duty of the operator to prohibit smoking in their own place, since operators have a duty to control and dissuade smoking in non-smoking areas.Moreover, for the effectiveness of law enforcement and to achieve the intention of the Non-Smokers’ Health Protection Act B.E. 2535, the law should give powers to the authorities to impose a fine by operating under the administrative procedure. The immediate and serious enforcement will make offenders fear wrongdoing and will lead to orderliness in the end. Furthermore, the law should impose the duty of the operator to prohibit smoking in their own place, since operators have a duty to control and dissuade smoking in non-smoking areas.