Proposal for a Council recommendation on smoke-free environments {SEC(2009)894} {SEC(2009)895} {SEC(2009)896)
Date: 2009-06-30
Institutions: European Commission
Subjects: EU action, EU programme, health policy, health risk, smoking, tobacco, tobacco industry

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 30.6.2009 
COM(2009) 328 final 

2009/0088 (CNS) 

Proposal for a 

COUNCIL RECOMMENDATION 

on smoke-free environments  

{SEC(2009)894} 
{SEC(2009)895} 
{SEC(2009)896) 

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EXPLANATORY MEMORANDUM 

Tobacco is the single largest cause of avoidable death, disease and disability in the European 
Union  (EU),  claiming  around  650  thousand  lives  each  year.1  Exposure  to  environmental 
tobacco  smoke  (ETS)  –  also  referred  to  as  second-hand  tobacco  smoke  –  is  a  significant 
additional  source  of  mortality,  morbidity  and  disability  in  the  EU.  ETS  contains  over  4 000 
gaseous and particulate compounds, including 69 known carcinogens and many toxic agents. 
There is no  safe  level of  exposure to second-hand tobacco smoke.2  ETS  has  been  shown  to 
have  immediate  adverse  effects  on  the cardiovascular  system  and  to  be  a  cause  of  coronary 
heart  disease  and  lung  cancer  in  adults.  There  is  also  evidence  that  ETS  may  cause  stroke, 
asthma and chronic obstructive pulmonary disease (COPD) in adults3 and worsen pre-existing 
conditions  such  as  asthma  and  COPD.4  ETS  is  particularly  harmful  to  children,  causing 
asthma,  pneumonia  and  bronchitis,  respiratory  symptoms,  middle  ear  disease,  and  sudden 
infant death syndrome.5 In addition to the health risk, exposure to tobacco smoke at home and 
in  public  places  could  increase  children's  perceptions  about  smoking  as  common  adult 
behaviour and thus could make it more likely that they will become smokers themselves.  

According  to  conservative  estimates,  7 300  adults  including  2 800  non-smokers  died  as  a 
result  of  ETS  exposure  at  their  workplace  in  the  EU-25  in  2002.  The  deaths  of  a  further 
72 000 people, including 16 400 non-smokers, were caused by ETS exposure at home.6 The 
Impact  Assessment  accompanying  this  proposal  estimates  that  workplace  exposure  to  ETS 
accounted for 6 000 deaths, including 2 500 non-smokers, in the EU in 2008. This translates 
into a significant cost to the economy, including over 1.3 billion euro in direct medical costs 
and  over  1.1  billion  euro  in  indirect  costs  linked  to  productivity  losses.  A  significant 
additional health and financial burden is associated with exposure to tobacco smoke suffered 
by non-staff members such as the customers of bars and restaurants.  

Great  progress  towards  smoke-free  environments  has  been  made  in  recent  years  in  some 
Member  States.  So  far,  comprehensive  smoke-free  laws  covering  indoor  workplaces  and 
public places have been adopted in over a third of EU Member States. However, significant 
differences  in  the  level  of  protection  from  exposure  to  tobacco  smoke  persist  both  between 
and  within  Member  States.  Hospitality  workers  are  the  most  vulnerable  occupational  group 
due  to  the  lack  of  comprehensive  protection  in  the  majority  of  Member  States  and  the 
exceptionally high concentrations of tobacco smoke in bars and restaurants. 

Comprehensive smoke-free policies already in place in several Member States and outside the 
European Union have proved to be effective in reducing the tobacco-related burden while not 
harming  the  economy.  The  immediate  health  effects  of  smoke-free  laws  include  improved 

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Tobacco  or  health  in  the  European  Union:  Past,  present  and  future,  ASPECT  Consortium,  October 
2004. 
Surgeon  General  (2006).  The  Health  Consequences  of  Involuntary  Exposure  to  Tobacco  Smoke:  A 
Report  of  the  Surgeon  General.  Atlanta,  Ga,  U.S.  Dept.  of  Health  and  Human  Services,  Centers  for 
Disease  Control  and  Prevention,  Coordinating  Center  for  Health  Promotion,  National  Center  for 
Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. 
Surgeon General (2006). op. cit. 
Foreman, M. G., D. L. DeMeo, et al. (2007). "Clinical determinants of exacerbations in severe, early-
onset COPD." European Respiratory Journal 30(6): 1124-1130. 
Surgeon General (2006). op. cit. 
The  Smoke  Free  Partnership  (2006).  Lifting  the  smokescreen:  10  reasons  for  a  smoke  free  Europe 
Brussels, Belgium, European Respiratory Society. 

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respiratory health of hospitality workers and reduced incidence of heart attacks in the general 
population. Smoke-free policies have been shown to reduce tobacco consumption, encourage 
quit attempts and reduce smoking uptake among young people. Smoke-free legislation tends 
to increase public awareness about the dangers of tobacco smoke and thus may help reduce 
smoking at home, especially in the presence of children. Nine out of ten EU citizens support 
smoke-free  workplaces  and  public  places.  Studies  have  shown  that  support  for  smoke-free 
policies tends to increase after their introduction. 

At EU level, the issue of smoke-free environments has so far been addressed in non-binding 
resolutions  and  recommendations,  but  these  do  not  provide  detailed  guidance  on  how  to 
achieve  fully  smoke-free  environments.  The  subject  is  also  touched  upon  in  a  number  of 
occupational  health  and  safety  directives,  in  some  cases  only  indirectly  while  in  others  the 
level of protection is not comprehensive.  

At  international  level,  Article  8  of  the  WHO  Framework  Convention  on  Tobacco  Control 
(FCTC)  –  ratified  so  far  by  26  Member  States  and  the  Community  –  obliges  all  Parties  to 
ensure  effective  protection  from  exposure  to  tobacco  smoke  in  indoor  workplaces,  indoor 
public  places  and  public  transport.  According  to  the  guidelines  adopted  by  the  second 
Conference  of  the  Parties  in  July  2007,  each  Party  should  strive  to  provide  universal 
protection within five years of the Convention's entry into force for that Party (i.e. by 2010 for 
the European Community and the majority of its Member States).  

The  consultation  initiated  by  the  Commission's  Green  Paper  "Towards  a  Europe  free  from 
tobacco  smoke:  policy  options  at  EU  level"7  revealed  significant  support  both  for 
comprehensive  smoke-free  policies  in  all  enclosed  workplaces  and  public  places  and  for 
further EU action to promote smoke-free environments throughout the Member States.  

Based  on  the  outcome  of  the  Green  Paper  consultation,  five  main  policy  options  are 
considered in the Impact Assessment accompanying this proposal: status quo, open method of 
coordination,  a  Commission  or  Council  Recommendation,  and  binding  EU  legislation.  The 
Impact Assessment identifies a Council Recommendation as the preferred option in the short 
term  as  that  appears  to  be  the  fastest  and  most  comprehensive  means  of  helping  Member 
States  to  implement  binding  smoke-free  legislation  at  national  level  in  line  with  their 
international commitments  under the  FCTC while providing a proportionate response to  the 
problem.  

The  main  focus  of  the  proposed  Recommendation  is  the  effective  EU  implementation  of 
Article  8  of  the  FCTC  in  line  with  the  guidelines  on  protection  from  exposure  to  tobacco 
smoke  adopted  by  the  second  Conference  of  the  Parties  to  the  Convention.  The  guidelines 
provide  comprehensive,  knowledge-based  and  balanced  policy  guidance  that  is  in  line  with 
the EU's smoke-free policies. They make it clear that there is no safe level of ETS exposure 
and call for the elimination of tobacco smoke in all indoor workplaces, indoor public places, 
public  transport  and  possibly  other  (outdoor  or  quasi-outdoor)  public  places.  Binding 
legislation,  rigorously  enforced,  monitored  and  evaluated,  is  recommended  as  the  only 
appropriate way to deal with the problem of second-hand smoke.  

The  proposed  Recommendation  sets  a  uniform  EU  deadline  for  implementation  as  well  as 
reporting and monitoring mechanisms both at Member States' and EU level to speed up and 

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COM(2007) 27 final. 

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facilitate the implementation of Article 8 of the FCTC in line with the guidelines adopted by 
the Second Conference of the Parties.  

The proposed Recommendation calls for 1) measures to tackle ETS exposure among children 
and adolescents, 2) flanking measures such as effective policies for cessation of tobacco use 
and pictorial warnings on tobacco packages, 3) development of comprehensive multi-sectorial 
strategies  and  adequate  instruments  to  implement  them,  and  4)  regular  exchange  of 
information and best practice as well as policy coordination among Member States through a 
network of national focal points. Given the relative novelty of some of these provisions, it is 
expected  that  Member  States  will  cooperate  closely  among  themselves  and  with  the 
Commission on the development of common definitions, benchmarks and indicators for their 
implementation.  

This  proposal  complies  with  the  principles  of  proportionality  and  subsidiarity.  It  seeks  to 
assist Member States in providing effective protection from tobacco smoke and thus meeting 
their obligations under Article 8 of the FCTC in line with the outcome of Council's discussion 
of 30 and 31 May 2007 which called for "Community guidance to further promote smoke-free 
environments  at  EU  level  as  well  as  Community  support  for  and  coordination  of  national 
measures" as a follow-up to the Commission's Green Paper. 

The different levels of protection from the risk of ETS exposure between and within Member 
States necessitate action at EU level to support Member States' efforts to address the problem. 
The  EU  can  encourage  cooperation  between  the  Member  States  and  lend  support  to  their 
action  as  laid  down  in  Article  152  of  the  EC  Treaty  to  improve  public  health  and  prevent 
human illness and diseases.  

The proposed Recommendation would lend support to Member States' efforts by providing a 
political stimulus and creating a commitment on the part of the Member States, setting up a 
clear  monitoring  mechanism  at  EU  level  and  facilitating  the  exchange  of  best  practices  and 
policy coordination between Member States. 

The  Commission  will  facilitate  the  smooth  implementation  of  this  Recommendation  by 
assisting  Member  States  that  have  not  yet  done  so  to  develop,  enact  and  implement 
comprehensive  smoke-free  policies;  supporting  policy  development  and  providing  evidence 
base through relevant Community programmes, and coordinating the work of the network of 
national  focal  points  in  the  field  of  tobacco  control.  The  Commission  will  evaluate  the 
effectiveness of the Recommendation and of the measures undertaken in the Member States in 
response to this Recommendation. 

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2009/0088 (CNS) 

Proposal for a 

COUNCIL RECOMMENDATION 

on smoke-free environments  

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular  the 
second subparagraph of Article 152(4), 

Having regard to the proposal from the Commission8, 

Having regard to the opinion of the European Parliament9, 

Having regard to the opinion of the European Economic and Social Committee10, 

Having regard to the opinion of the Committee of the Regions11, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

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Article  152  of  the  Treaty  stipulates  that  Community  action,  which  shall  complement 
national policies, shall be directed towards improving public health, preventing human 
illness and diseases, and obviating sources of danger to human health. 

According to Article 137 of the Treaty, the Community shall support and complement 
the activities of the Member States, inter alia, in the field of improvement in particular 
of the working environment to protect workers' health and safety.  

Exposure  to  environmental  tobacco  smoke  (ETS)  –  also  referred  to  as  second-hand 
tobacco smoke – is a widespread source of mortality, morbidity and disability in the 
European Union. 

According  to  conservative  estimates,  7 300  adults  including  2 800  non-smokers  died 
as  a  result  of  ETS  exposure  at  their  workplace  in  the  European  Union  in  2002.  A 
further  72 000  adult  deaths,  including  16 400  non-smokers,  were  linked  to  ETS 
exposure at home.12 

OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
The  Smoke  Free  Partnership  (2006).  Lifting  the  smokescreen:  10  reasons  for  a  smoke  free  Europe 
Brussels, Belgium, European Respiratory Society. 

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(5) 

(6) 

(7) 

(8) 

(9) 

Exposure  to  second-hand  tobacco  smoke  is  particularly  dangerous  to  children  and 
could increase the likelihood of their taking up smoking.  

All people have the right to a high level of health protection and should be protected 
from exposure to tobacco smoke. 

Voluntary  policies  at  national  level  have  proved  ineffective  in  reducing  exposure  to 
tobacco smoke. Member States' binding legislation, properly enforced and monitored, 
is the only means of adequately protecting people from the health risks of second-hand 
tobacco smoke.  

Smoke-free  legislation  is  most  effective  when  it  is  backed  up  by  measures  such  as 
awareness-raising  campaigns,  support  for  cessation  of  tobacco  use  and  strong  health 
warnings on tobacco product packaging. 

Civil  society  has  an  important  role  in  building  support  for  and  ensuring  compliance 
with smoke-free legislation. 

(10)  Smoke-free  policies  should  have  adequate  instruments  to  implement  the  multi-

sectorial approach to tobacco control.  

(11)  There is a need for strengthened cooperation between Member States to facilitate the 
exchange of information and best practice and develop a standardised EU monitoring 
system.  

(12)  The  resolution  of  the  Council  and  the  Ministers  for  Health  of  the  Member  States, 
meeting within the Council of 18 July 1989 on banning smoking in places open to the 
public13
  invited  the  Member  States  to  take  measures  banning  smoking  in  certain 
enclosed premises open to the public, and to extend the ban on smoking to all forms of 
public transport.  

(13)  Council  Recommendation  2003/54/EC  of  2  December  2002  on  the  prevention  of 
smoking  and  on  initiatives  to  improve  tobacco  control14  recommended  that  Member 
States  implement  legislation  and/or  other  effective  measures  that  provide  protection 
from exposure to environmental tobacco smoke in indoor workplaces, enclosed public 
places, and public transport. 

(14)  Council  Directive  89/391/EEC  of  12  June  1989  on  the  introduction  of  measures  to 
encourage  improvements  in  the  safety  and  health  of  workers  at  work15,  while  not 
explicitly  referring  to  tobacco  smoke,  covers  all  risks  to  the  health  and  safety  of 
workers.16 

(15) 

In  its  Environment  and  Health  Action  Plan  (2004-2010)17,  the  Commission  has 
undertaken  to  "develop  work  on  improving  indoor  air  quality",  in  particular  by 
"encouraging  the  restriction  of  smoking  in  all  workplaces  by  exploring  both  legal 

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16 
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OJ C 189, 26.7.1989, p. 1. 
OJ L 22, 25.1.2003, p. 31. 
OJ L 183, 29.6.1989, p. 1. 
Cf. the Judgment of the Court in Case C-49/00 Commission v. Italy, paras 10 to 18. 
COM(2004) 416 final 

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mechanisms  and  health  promotion  initiatives  at  both  European  and  Member  State 
level”.  

(16)  The consultation initiated by the Commission's Green Paper "Towards a Europe free 
from  tobacco  smoke:  policy  options  at  EU  level"18  revealed  strong  support  both  for 
comprehensive smoke-free policies in all enclosed workplaces and public places and 
for  further  EU  action  to  promote  smoke-free  environments  throughout  the  Member 
States. 

(17)  The  Employment,  Social  Policy,  Health  and  Consumer  Affairs  Council  held  an 
exchange of views on policy options at EU level on tobacco smoke-free environments 
on 30 and 31 May 2007. It welcomed the Commission's Green Paper and stressed the 
need for Community guidance to further promote tobacco-smoke free environments at 
EU level, as well as Community support for and coordination of national measures. 

(18)  The  European Parliament's resolution of 24 October 2007 on the Green Paper called 
on the Member States to introduce comprehensive smoke-free laws within two years 
and  invited  the  Commission  to  table  a  relevant  legislative  proposal  by  2011  in  the 
event  of  unsatisfactory  progress.  It  also  called  on  the  Commission  to  propose  an 
amendment  of  the  current  legislative  framework  in  order  to  classify  environmental 
tobacco smoke as a carcinogen and oblige employers to ensure that the workplace is 
smoke-free.  

(19)  Article 8 of the WHO Framework Convention on Tobacco Control (FCTC), signed in 
June  2003  by  all  WHO  members,  and  so  far  ratified  by  161  Parties,  including  the 
Community  and  26  of  its  Member  States,  creates  a  legal  obligation  for  its  Parties  to 
adopt  and  implement  in  areas  of  existing  national  jurisdiction  as  determined  by 
national  law  and  to  actively  promote  at  other  jurisdictional  levels  the  adoption  and 
implementation of effective measures to protect people from exposure to second-hand 
tobacco smoke in all indoor workplaces, public transport and indoor public places and, 
as appropriate, other public places. 

(20)  The  Second  Conference  of  the  Parties  to  the  WHO  Framework  Convention  in  July 
2007  adopted  guidelines  on  protection  from  exposure  to  tobacco  smoke19  to  assist 
Parties  in  meeting  their  obligations  under  Article  8  of  the  Convention.  Each  Party 
should strive to implement the guidelines within five years of the Convention's entry 
into force for that Party. 

(21)  Article 14 of the WHO Framework Convention creates a legal obligation for its Parties 
to  develop  and  disseminate  appropriate,  comprehensive  and  integrated  guidelines 
based  on  scientific  evidence  and  best  practices,  and  to  take  effective  measures  to 
promote cessation of tobacco use and adequate treatment for tobacco dependence. The 
Third  Conference  of  the  Parties  to  the  WHO  Framework  Convention  decided  to 
establish a working group for the elaboration of guidelines for implementation of this 
Article. 

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COM (2007) 27 final 
FCTC/COP2(7)]  Guidelines  on  protection  from  exposure  to  tobacco  smoke,  as  elaborated  by  the 
working group convened in accordance with decision FCTC/COP1(15) of the Conference of the Parties 
to the WHO Framework Convention on Tobacco Control. 

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(22)  The European Strategy on Tobacco Control adopted by the WHO Regional Committee 
for Europe in September 2002 recommended that Member States ensure citizens’ right 
to  a  smoke-free  environment  by,  inter  alia,  making  public  places,  workplaces  and 
public transport smoke-free, banning smoking outdoors in all educational institutions 
for  minors,  in  all  places  of  healthcare  delivery  and  at  public  events,  as  well  as 
classifying environmental tobacco smoke as a carcinogen. 

(23)  Environmental  tobacco  smoke  has  been  classified  as  a  known  human  carcinogen  by 
the  WHO  International  Agency  for  Research  on  Cancer  and  as  an  occupational 
carcinogen by Finland and Germany. 

(24)  This Recommendation is without prejudice to the Community legislation laying down 
minimum requirements for the safety and health protection of workers adopted under 
Article 137 of the Treaty, to Directive 2001/37/EC of the European Parliament and of 
the  Council  of  5  June  2001  on  the  approximation  of  the  laws,  regulations  and 
administrative  provisions  of  the  Member  States  concerning  the  manufacture, 
presentation and sale of tobacco products20 and to Commission Decision 2003/641/EC 
of 5 September 2003 on the use of colour photographs or other illustrations as health 
warnings on tobacco packages21. 

HEREBY RECOMMENDS THAT THE MEMBER STATES: 

1. 

2. 

3. 

Provide effective protection from exposure to tobacco smoke in indoor workplaces, 
indoor  public  places,  public  transport  and,  as  appropriate,  other  public  places  as 
stipulated by Article 8 of the WHO Framework Convention on Tobacco Control and 
based  on  the  annexed  guidelines  on  protection  from  exposure  to  tobacco  smoke 
adopted by the Second Conference of the Parties to the Convention, within five years 
of  the  Convention's  entry  into  force  for  that  Member  State,  or  at  the  latest  within 
three years following the adoption of this Recommendation; 

Develop  and/or  strengthen  strategies  and  measures  to  reduce  exposure  to  second 
hand tobacco smoke of children and adolescents;  

Complement smoke-free policies with supporting measures, including:  

(a) 

(b) 

taking  effective  measures  to  promote  cessation  of  tobacco  use  and 
adequate  treatment  for  tobacco  dependence  as  outlined  in  Article  14  of 
the WHO Framework Convention;  

introducing  combined  warnings  (as  defined  by  Article  2(4)  of 
Commission  Decision  2003/641/EC  of  5  September  2003  on  the  use  of 
colour  photographs  or  other  illustrations  as  health  warnings  on  tobacco 
packages22)  and  information  on  services  supporting  the  cessation  of 
tobacco  use  on  the  packages  of  smoking  tobacco  products  in  order  to 
better  inform  consumers  about  the  health  risks  of  tobacco  use  and 

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21 

22 

OJ L 194, 18.7.2001, p. 26. 
OJ L 226, 10.9.2003, p. 24. 
OJ L 226, 10.9.2003, p. 24. 

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exposure to tobacco smoke, encourage cessation of tobacco use and deter 
initiation; 

Develop,  implement,  periodically  update  and  review  comprehensive  multi-sectoral 
national tobacco control strategies, plans and programmes which address, inter alia, 
the issue of protection from tobacco smoke in both public and private settings; 

Provide  adequate  instruments  to  implement  national  strategies,  tobacco  control 
policies  and  programmes  in  order  to  ensure  effective  protection  from  exposure  to 
tobacco smoke; 

Establish and communicate to the Commission, if possible within 6 months after the 
adoption  of  this  Recommendation,  national  focal  points  for  tobacco  control  with  a 
view  to  exchanging  information  and  best  practices  as  well  as  policy  coordination 
with other Member States; 

Co-operate  closely  among  themselves  and  with  the  Commission  on  a  coherent 
framework of definitions, benchmarks and indicators for the implementation of this 
Recommendation; 

Monitor  and  evaluate  the  effectiveness  of  policy  measures  using  the  above 
mentioned indicators; 

Inform  the  Commission  of  legislative  and  other  action  taken  in  response  to  this 
Recommendation and of the results of monitoring and evaluation. 

4. 

5. 

6. 

7. 

8. 

9. 

HEREBY INVITES THE COMMISSION TO: 

1. 

Report  on  the  implementation,  the  functioning  and  the  impacts  of  the  proposed 
measures, on the basis of the information provided by Member States. 

Done at Brussels,  

For the Council 
The President 

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ANNEX  

Guidelines  on  protection  from  exposure  to  tobacco  smoke,  as  adopted  by  the  Second 
Conference of the Parties to the WHO Framework Convention on Tobacco Control 

PURPOSE, OBJECTIVES AND KEY CONSIDERATIONS  

Purpose of the guidelines 

1. 

2. 

Consistent  with  other  provisions  of  the  WHO  Framework  Convention  on  Tobacco 
Control  and  the  intentions  of  the  Conference  of  the  Parties,  these  guidelines  are 
intended  to  assist  Parties  in  meeting  their  obligations  under  Article  8  of  the 
Convention. They draw on the best available evidence and the experience of Parties 
that have successfully implemented effective measures to reduce exposure to tobacco 
smoke. 

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.  In  addition,  the  guidelines  identify  the 
measures necessary to achieve effective protection from the hazards of second-hand 
tobacco smoke. Parties are encouraged to use these guidelines not only to fulfil their 
legal  duties  under  the  Convention,  but  also  to  follow  best  practices  in  protecting 
public health. 

Objectives of the guidelines 

3. 

These guidelines have two related objectives. The first is to assist Parties in meeting 
their  obligations  under  Article  8  of  the  WHO  Framework  Convention,  in  a  manner 
consistent  with  the  scientific  evidence  regarding  exposure  to  second-hand  tobacco 
smoke  and  the  best  practice  worldwide  in  the  implementation  of  smoke  free 
measures,  in  order  to  establish  a  high  standard  of  accountability  for  treaty 
compliance and to assist the Parties in promoting the highest attainable standard of 
health. The second objective is to identify the key elements of legislation necessary 
to effectively protect people from exposure to tobacco smoke, as required by Article 
8. 

Underlying considerations 

4. 

The  development  of  these  guidelines  has  been  influenced  by  the  following 
fundamental considerations. 

(a)  The duty to protect from tobacco smoke, embodied in the text of Article 
8,  is  grounded  in  fundamental  human  rights  and  freedoms.  Given  the 
dangers  of  breathing  second-hand  tobacco  smoke,  the  duty  to  protect 
from tobacco smoke is implicit in, inter alia, the right to life and the right 
to  the  highest  attainable  standard  of  health,  as  recognized  in  many 
international  legal  instruments  (including  the  Constitution  of  the  World 

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Health  Organization,  the  Convention  on  the  Rights  of  the  Child,  the 
Convention  on  the  Elimination  of  all  Forms  of  Discrimination  against 
Women and the Covenant on Economic, Social and Cultural Rights), as 
formally  incorporated  into  the  preamble  of  the  WHO  Framework 
Convention and as recognized in the constitutions of many nations. 

(b)  The  duty  to  protect  individuals  from  tobacco  smoke  corresponds  to  an 
obligation  by  governments  to  enact  legislation  to  protect  individuals 
against threats to their fundamental rights and freedoms. This obligation 
extends to all persons, and not merely to certain populations. 

(c)  Several authoritative scientific bodies have determined that second-hand 
tobacco  smoke  is  a  carcinogen.  Some  Parties  to  the  WHO  Framework 
Convention (for example, Finland and Germany) have classified second-
hand  tobacco  smoke  as  a  carcinogen  and  included  the  prevention  of 
exposure to it at work in their health and safety legislation. In addition to 
the  requirements  of  Article  8,  therefore,  Parties  may  be  obligated  to 
address the hazard of exposure to tobacco smoke in accordance with their 
existing  workplace  laws  or  other  laws  governing  exposure  to  harmful 
substances, including carcinogens. 

STATEMENT  OF  PRINCIPLES  AND  RELEVANT  DEFINITIONS  UNDERLYING 
PROTECTION FROM EXPOSURE TO TOBACCO SMOKE 

Principles 

5. 

As  noted  in  Article  4  of  the  WHO  Framework  Convention,  strong  political 
commitment  is  necessary  to  take  measures  to  protect  all  persons  from  exposure  to 
the 
tobacco  smoke.  The  following  agreed  upon  principles  should  guide 
implementation of Article 8 of the Convention. 

Principle 1 

6. 

Effective  measures  to  provide  protection  from  exposure  to  tobacco  smoke,  as 
envisioned  by  Article  8  of  the  WHO  Framework  Convention,  require  the  total 
elimination  of  smoking  and  tobacco  smoke  in  a  particular  space  or  environment  in 
order to create a 100% smoke free environment. There is no safe level of exposure to 
tobacco smoke, and notions such as a threshold value for toxicity from second-hand 
smoke  should  be  rejected,  as  they  are  contradicted  by  scientific  evidence. 
Approaches  other  than  100%  smoke  free  environments,  including  ventilation,  air 
filtration and the use of designated smoking areas (whether with separate ventilation 
systems or not), have repeatedly been shown to be ineffective and there is conclusive 
evidence, scientific and otherwise, that engineering approaches do not protect against 
exposure to tobacco smoke. 

Principle 2 

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7. 

All  people  should  be  protected  from  exposure  to  tobacco  smoke.  All  indoor 
workplaces and indoor public places should be smoke free. 

Principle 3 

8. 

Legislation  is  necessary  to  protect  people  from  exposure  to  tobacco  smoke. 
Voluntary smoke free policies have repeatedly been shown to be ineffective and do 
not  provide  adequate  protection.  In  order  to  be  effective,  legislation  should  be 
simple, clear and enforceable. 

Principle 4 

9. 

Good  planning  and  adequate  resources  are  essential  for  successful  implementation 
and enforcement of smoke free legislation. 

Principle 5 

10. 

Civil society has a central role in building support for and ensuring compliance with 
smoke free measures, and should be included as an active partner in the process of 
developing, implementing and enforcing legislation. 

Principle 6 

11. 

The implementation of smoke free legislation, its enforcement and its impact should 
all  be  monitored  and  evaluated.  This  should  include  monitoring  and  responding  to 
tobacco  industry  activities  that  undermine  the  implementation  and  enforcement  of 
the legislation, as specified in Article 20.4 of the WHO Framework Convention. 

Principle 7 

12. 

The  protection  of  people  from  exposure  to  tobacco  smoke  should  be  strengthened 
and  expanded,  if  necessary;  such  action  may  include  new  or  amended  legislation, 
improved  enforcement  and  other  measures  to  reflect  new  scientific  evidence  and 
case-study experiences. 

Definitions 

13. 

In  developing  legislation,  it  is  important  to  use  care  in  defining  key  terms.  Several 
recommendations  as  to  appropriate  definitions,  based  on  experiences  in  many 
countries, are  set out here. The  definitions in this  section supplement  those already 
included in the WHO Framework Convention. 

“Second-hand tobacco smoke” or “environmental tobacco smoke” 

14. 

Several alternative terms are commonly used to describe the type of smoke addressed 
by  Article  8  of  the  WHO  Framework  Convention.  These  include  “second-hand 
smoke”,  “environmental  tobacco  smoke”,  and  “other  people’s  smoke”.  Terms  such 
as  “passive  smoking”  and  “involuntary  exposure  to  tobacco  smoke”  should  be 

EN 

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in 

as 

experience 

avoided, 
that 
France 
the  tobacco  industry  may  use  these  terms  to  support  a  position  that  “voluntary” 
exposure  is  acceptable.  “Second-hand  tobacco  smoke”,  sometimes  abbreviated  as 
“SHS”, and “environmental tobacco smoke”, sometimes abbreviated “ETS”, are the 
preferable terms; these guidelines use “second-hand tobacco smoke”. 

elsewhere 

suggests 

and 

15. 

16. 

Second-hand tobacco smoke can be defined as “the smoke emitted from the burning 
end  of  a  cigarette  or  from  other  tobacco  products  usually  in  combination  with  the 
smoke exhaled by the smoker”. 

“Smoke free air” is air that is 100% smoke free. This definition includes, but is not 
limited  to,  air  in  which  tobacco  smoke  cannot  be  seen,  smelled,  sensed  or 
measured.23 

“Smoking” 

17. 

This term should be defined to include being in possession or control of a lit tobacco 
product regardless of whether the smoke is being actively inhaled or exhaled. 

“Public places” 

18. 

While the precise definition of “public places” will vary between jurisdictions, it is 
important that legislation define this term as broadly as possible. The definition used 
should cover all places accessible to the general public or places for collective use, 
regardless of ownership or right to access. 

“Indoor” or “enclosed” 

19. 

Article 8 requires protection from tobacco smoke in “indoor” workplaces and public 
places. Because there are potential pitfalls in defining “indoor” areas, the experiences 
of  various  countries  in  defining  this  term  should  be  specifically  examined.  The 
definition should be as inclusive and as clear as possible, and care should be taken in 
the  definition 
as 
excluding  potentially  relevant  “indoor”  areas.  It  is  recommended  that  “indoor”  (or 
“enclosed”) areas be defined to include any space covered by a roof or enclosed by 
one or more walls or sides, regardless of the type of material used for the roof, wall 
or sides, and regardless of whether the structure is permanent or temporary. 

that  may  be 

interpreted 

creating 

avoid 

lists 

to 

“Workplace” 

20. 

23 

A “workplace” should be defined broadly as “any place used by people during their 
employment  or  work”.  This  should  include  not  only  work  done  for  compensation, 
but also voluntary work, if it is of the type for which compensation is normally paid. 
In addition, “workplaces” include not only those places at which work is performed, 
but  also  all  attached  or  associated  places  commonly  used  by  the  workers  in  the 

It is possible that constituent elements of tobacco smoke may exist in air in amounts too small to be measured. 
Attention  should  be given  to  the  possibility  that  the  tobacco  industry  or  the hospitality  sector  may  attempt  to 
exploit the limitations of this definition. 

EN 

13 

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course  of  their  employment,  including,  for  example,  corridors,  lifts,  stairwells, 
lobbies, joint facilities, cafeterias, toilets, lounges, lunchrooms and also outbuildings 
such  as  sheds  and  huts.  Vehicles  used  in  the  course  of  work  are  workplaces  and 
should be specifically identified as such. 

21. 

Careful consideration should be given to workplaces that are also individuals’ homes 
or dwelling places, for example, prisons, mental health institutions or nursing homes. 
These  places  also  constitute  workplaces  for  others,  who  should  be  protected  from 
exposure to tobacco smoke. 

“Public transport” 

22. 

Public  transport  should  be  defined  to  include  any  vehicle  used  for  the  carriage  of 
members of the public, usually for reward or commercial  gain. This would include 
taxis. 

THE SCOPE OF EFFECTIVE LEGISLATION 

23. 

24. 

25. 

26. 

27. 

Article 8 requires the adoption of effective measures to protect people from exposure 
to  tobacco  smoke  in  (1)  indoor  workplaces,  (2)  indoor  public  places,  (3)  public 
transport, and (4) “as appropriate” in “other public places”. 

This creates an obligation to provide universal protection by ensuring that all indoor 
public places, all indoor workplaces, all public transport and possibly other (outdoor 
or  quasi-outdoor)  public  places  are  free  from  exposure  to  second-hand  tobacco 
smoke.  No  exemptions  are  justified  on  the  basis  of  health  or  law  arguments.  If 
exemptions  must  be  considered  on  the  basis  of  other  arguments,  these  should  be 
minimal. In addition, if a Party is unable to achieve universal coverage immediately, 
Article  8  creates  a  continuing  obligation  to  move  as  quickly  as  possible  to  remove 
any  exemptions  and  make  the  protection  universal.  Each  Party  should  strive  to 
provide universal protection within five years of the WHO Framework Convention’s 
entry into force for that Party. 

No  safe  levels  of  exposure  to  second-hand  smoke  exist,  and,  as  previously 
acknowledged  by  the  Conference  of  the  Parties  in  decision  FCTC/COP1(15), 
engineering approaches, such as ventilation, air exchange and the use of designated 
smoking areas, do not protect against exposure to tobacco smoke. 

Protection should be provided in all indoor or enclosed workplaces, including motor 
vehicles  used  as  places  of  work  (for  example,  taxis,  ambulances  or  delivery 
vehicles). 

The  language  of  the  treaty  requires  protective  measures  not  only  in  all  “indoor” 
public  places,  but  also  in  those  “other”  (that  is,  outdoor  or  quasi-outdoor)  public 
places  where  “appropriate”.  In  identifying  those  outdoor  and  quasi-outdoor  public 
places where legislation is appropriate, Parties should consider the evidence as to the 
possible health hazards in various settings and should act to adopt the most effective 
protection against exposure wherever the evidence shows that a hazard exists. 

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INFORM,  CONSULT  AND  INVOLVE  THE  PUBLIC  TO  ENSURE  SUPPORT  AND 
SMOOTH IMPLEMENTATION 

28. 

29. 

30. 

Raising awareness among the public and opinion leaders about the risks of second-
hand  tobacco  smoke  exposure  through  ongoing  information  campaigns  is  an 
important  role  for  government  agencies,  in partnership  with  civil  society,  to  ensure 
that the public understands and supports legislative action. Key stakeholders include 
businesses,  restaurant  and  hospitality  associations,  employer  groups,  trade  unions, 
the  media,  health  professionals,  organizations  representing  children  and  young 
people,  institutions  of  learning  or  faith,  the  research  community  and  the  general 
public.  Awareness-raising  efforts  should 
include  consultation  with  affected 
businesses  and  other  organizations  and  institutions  in  the  course  of  developing  the 
legislation. 

Key  messages  should  focus  on  the  harm  caused  by  second-hand  tobacco  smoke 
exposure,  the  fact  that  elimination  of  smoke  indoors  is  the  only  science-based 
solution to ensure complete protection from exposure, the right of all workers to be 
equally  protected  by  law  and  the  fact  that  there  is  no  trade-off  between  health  and 
economics,  because  experience  in  an  increasing  number  of  jurisdictions  shows  that 
smoke free environments benefit both. Public education campaigns should also target 
settings  for  which  legislation  may  not  be  feasible  or  appropriate,  such  as  private 
homes. 

Broad  consultation  with  stakeholders  is  also  essential  to  educate  and  mobilize  the 
community  and  to  facilitate  support  for  legislation  after  its  enactment.  Once 
legislation  is  adopted,  there  should  be  an  education  campaign  leading  up  to 
implementation  of  the  law,  the  provision  of  information  for  business  owners  and 
building managers outlining the law and their responsibilities and the production of 
resources,  such  as  signage.  These  measures  will  increase  the  likelihood  of  smooth 
implementation and high levels of voluntary compliance. Messages to empower non-
smokers  and  to  thank  smokers  for  complying  with  the  law  will  promote  public 
involvement in enforcement and smooth implementation. 

ENFORCEMENT  

Duty of compliance 

31. 

Effective  legislation  should  impose  legal  responsibilities  for  compliance  on  both 
affected  business  establishments  and  individual  smokers,  and  should  provide 
penalties  for  violations,  which  should  apply  to  businesses  and,  possibly,  smokers. 
Enforcement  should  ordinarily  focus  on  business  establishments.  The  legislation 
should  place 
the  owner,  manager 
or other person in charge of the premises, and should clearly identify the actions he 
or she is required to take. These duties should include: 

for  compliance  on 

responsibility 

the 

(a) 

a  duty  to  post  clear  signs  at  entrances  and  other  appropriate  locations 
indicating that smoking is not permitted. The format and content of these 
signs should be determined by health authorities or other agencies of the 

EN 

15 

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government  and  may  identify  a  telephone  number  or  other  mechanisms 
for the public to report violations and the name of the person within the 
premises to whom complaints should be directed; 

(b) 

a duty to remove any ashtrays from the premises; 

(c) 

a duty to supervise the observance of rules; 

(d) 

a duty to take reasonable specified steps to discourage individuals from 
smoking on the premises. These steps could include asking the person not to 
smoke, discontinuing service, asking the person to leave the premises and 
contacting a law enforcement agency or other authority. 

Penalties 

32. 

33. 

The legislation should specify fines or other monetary penalties for violations. While 
the size of these penalties will necessarily reflect the specific practices and customs 
of  each  country,  several  principles  should  guide  the  decision.  Most  importantly, 
penalties should be sufficiently large to deter violations or else they may be ignored 
costs  of  doing  business.  Larger 
by  violators  or 
penalties  are  required  to  deter  business  violators  than  to  deter  violations  by 
individual smokers, who usually have fewer resources. Penalties should increase for 
repeated  violations  and  should  be  consistent  with  a  country’s  treatment  of  other, 
equally serious offences. 

as  mere 

treated 

In  addition  to  monetary  penalties,  the  legislation  may  also  allow  for  administrative 
sanctions, such as the suspension of business licences, consistent with the country’s 
practice  and  legal  system.  These  “sanctions  of  last  resort”  are  rarely  used,  but  are 
very important for enforcing the law against any businesses that choose to defy the 
law repeatedly. 

34. 

Criminal  penalties  for  violations  may  be  considered  for  inclusion,  if  appropriate 
within a country’s legal and cultural context. 

Enforcement infrastructure 

35. 

36. 

Legislation should  identify  the authority or authorities  responsible for enforcement, 
and  should  include  a  system  both  for  monitoring  compliance  and  for  prosecuting 
violators. 

Monitoring should include a process for inspection of businesses for compliance. It is 
seldom necessary to create a new inspection system for enforcement of smoke free 
legislation. Instead, compliance can ordinarily be monitored using one or more of the 
mechanisms  already  in  place  for  inspecting  business  premises  and  workplaces.  A 
variety  of  options  usually  exists  for  this  purpose.  In  many  countries,  compliance 
inspections  may  be  integrated  into  business  licensing  inspections,  health  and 
sanitation  inspections,  inspections  for  workplace  health  and  safety,  fire  safety 
inspections or similar programmes. It may be valuable to use several such sources of 
information gathering simultaneously. 

EN 

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37. 

38. 

39. 

40. 

Where  possible,  the  use  of  inspectors  or  enforcement  agents  at  the  local  level  is 
recommended; this is likely to increase the enforcement resources available and the 
level  of  compliance.  This  approach  requires  the  establishment  of  a  national 
coordinating mechanism to ensure a consistent approach nationwide. 

Regardless  of  the  mechanism  used,  monitoring  should  be  based  on  an  overall 
enforcement  plan,  and  should  include  a  process  for  effective  training  of  inspectors. 
Effective  monitoring  may  combine  regular  inspections  with  unscheduled,  surprise 
inspections, as well as visits made in response to complaints. Such visits may well be 
educative in the early period after the law takes effect, as most breaches are likely to 
be inadvertent. The legislation should authorize inspectors to enter premises subject 
to the law and to collect samples and gather evidence, if these powers are not already 
established by existing law. Similarly, the legislation should prohibit businesses from 
obstructing the inspectors in their work. 

The  cost  of  effective  monitoring  is  not  excessive.  It  is  not  necessary  to  hire  large 
numbers  of  inspectors,  because  inspections  can  be  accomplished  using  existing 
programmes  and  personnel,  and  because  experience  shows  that  smoke  free 
legislation  quickly  becomes  self-enforcing  (that  is,  predominantly  enforced  by  the 
public). Only a few prosecutions may be necessary if the legislation is implemented 
carefully and active efforts are made to educate businesses and the public. 

Although  these  programmes  are  not  expensive,  resources  are  needed  to  educate 
businesses,  train  inspectors,  coordinate  the  inspection  process  and  compensate 
personnel for inspections of businesses outside of normal working hours. A funding 
mechanism should be identified for this purpose. Effective monitoring programmes 
have  used  a  variety  of  funding  sources,  including  dedicated  tax  revenues,  business 
licensing fees and dedicated revenues from fines paid by violators. 

Enforcement strategies 

41. 

42. 

43. 

Strategic  approaches  to  enforcement  can  maximize  compliance,  simplify  the 
implementation of legislation and reduce the level of enforcement resources needed. 

In  particular,  enforcement  activities  in  the  period  immediately  following  the  law’s 
entrance  into  force  are  critical  to  the  law’s  success  and  to  the  success  of  future 
monitoring and enforcement. Many jurisdictions recommend an initial period of soft 
enforcement, during which violators are cautioned but not penalized. This approach 
should be combined with an active campaign to educate business owners about their 
responsibilities under the law, and businesses should understand that the initial grace 
period or phase-in period will be followed by more rigorous enforcement. 

When  active  enforcement  begins,  many  jurisdictions  recommend  the  use  of  high-
profile  prosecutions  to  enhance  deterrence.  By  identifying  prominent  violators  who 
have actively defied the law or who are well known in the community, by taking firm 
and  swift  action  and  by  seeking  maximum  public  awareness  of  these  activities, 
authorities are able to demonstrate their resolve and the seriousness of the law. This 
increases  voluntary  compliance  and  reduces  the  resources  needed  for  future 
monitoring and enforcement. 

EN 

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44. 

While  smoke  free  laws  quickly  become  self-enforcing,  it  is  nevertheless  essential 
that  authorities  be  prepared  to  respond  swiftly  and  decisively  to  any  isolated 
instances of outright defiance.  Particularly when a law first comes into  force,  there 
may be an occasional violator who makes a public display of contempt for the law. 
Strong responses in these cases set an expectation of compliance that will ease future 
efforts, while indecisiveness can rapidly lead to widespread violations. 

Mobilize and involve the community 

45. 

The  effectiveness  of  a  monitoring-and-enforcement  programme  is  enhanced  by 
involving the community in the programme. Engaging the support of the community 
and  encouraging  members  of  the  community  to  monitor  compliance  and  report 
violations  greatly  extends  the  reach  of  enforcement  agencies  and  reduces  the 
resources  needed  to  achieve  compliance.  In  fact,  in  many  jurisdictions,  community 
complaints  are  the  primary  means  of  ensuring  compliance.  For  this  reason,  smoke 
free  legislation  should  specify  that  members  of  the  public  may  initiate  complaints 
and should authorize any person or nongovernmental organization to initiate action 
to compel compliance with measures regulating exposure to second-hand smoke. The 
enforcement programme should include a toll-free telephone complaint hotline or a 
similar system to encourage the public to report violations. 

MONITORING AND EVALUATION OF MEASURES 

46. 

Monitoring  and  evaluation  of  measures  to  reduce  exposure  to  tobacco  smoke  are 
important for several reasons, for example: 

(a) 

(b) 

(c) 

to  increase  political  and  public  support  for  strengthening  and  extending 
legislative provisions; 

to  document  successes  that  will  inform  and  assist  the  efforts  of  other 
countries; 

to  identify  and  publicize  the  efforts  made  by  the  tobacco  industry  to 
undermine the implementation measures. 

47. 

The  extent  and  complexity  of  monitoring  and  evaluation  will  vary  among 
jurisdictions,  depending  on  available  expertise  and  resources.  However,  it  is 
important to evaluate the outcome of the measures implemented, in particular, on the 
key  indicator  of  exposure  to  second-hand  smoke  in  workplaces  and  public  places. 
There may be cost-effective ways to achieve this, for example through the use of data 
or information collected through routine activities such as workplace inspections. 

48. 

There are eight key process and outcome indicators that should be considered:24 

Processes 

24 

The  publication  "WHO  policy  recommendations:  protection  from  exposure  to  second-hand  tobacco  smoke" 
(Geneva,  World  Health  Organization,  2007)  provides  references  and  links  to  monitoring  studies  conducted 
elsewhere on all of these indicators. 

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Outcomes 

(a)  Knowledge,  attitudes  and  support  for  smoke  free  policies  among  the 
general  population  and  possibly  specific  groups,  for  example,  bar 
workers; 

(b) 

enforcement of and compliance with smoke free policies; 

(a) 

(b) 

(c) 

reduction  in  exposure  of  employees  to  second-hand  tobacco  smoke  in 
workplaces and public places; 

reduction  in  content  of  second-hand  tobacco  smoke  in  the  air  in 
workplaces (particularly in restaurants) and public places; 

reduction  in  mortality  and  morbidity  from  exposure  to  second-hand 
tobacco smoke; 

(d) 

reduction in exposure to second-hand tobacco smoke in private homes; 

(e) 

changes in smoking prevalence and smoking-related behaviours; 

(f) 

economic impacts. 

EN 

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