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BMA response to the Department of Health's consultation on the Smokefree Elements of the Health Improvement and Protection Bill

Doctors in all parts of the UK have taken a leading role in campaigning for this legislation because they see at first hand the misery and illness that are caused by smoke-filled public places - from patients made seriously ill by second-hand smoke, and others struggling to give up smoking, to those left isolated because their health will not allow them to socialise in smoky places.

The robust medical evidence that exposure to second-hand smoke causes fatal illness has been summarised by the BMA in a number of previous reports. This evidence appears to have been accepted by the Government. Despite this, the proposals for smoke-free legislation outlined in the White Paper Choosing Health will leave significant numbers of people at risk from second-hand smoke.

The message seems to be that the well-to-do will be able to choose health, while the rest must choose between health and their livelihood, or health and their social life. Nobody should have to make that choice.

Recently published research demonstrates that the exemptions proposed for the licensed trade can only increase health inequalities. In contrast, comprehensive legislation covering all licensed premises would bring major health improvements to the whole population.

Of the options outlined in the RIA, the BMA would strongly support the adoption of Option 2 – A full ban in all enclosed public places and workplaces - although the evidence from other countries suggests that a limited number of defined residential exceptions will be necessary. The estimated benefits are very conservative. In locations like Ireland and California, the introduction of smoke-free laws have contributed to significant reductions in smoking prevalence, and immediate improvements in bar workers’ health.

None of the other options is evidence-based or equitable. The voluntary approach has been shown by the Public Places Charter to be a wildly ineffective public health measure, and there is no credible evidence to support estimates of health, economic or environmental gains from continuing with this approach. Action at local level will create needless duplication of work for local authorities, and enormous disparities between people and businesses in different parts of the country. Local action is no substitute for effective national legislation. Finally, the licensed trade exceptions outlined in option 4 will exacerbate health inequalities.

The BMA strongly supports the proposal that the Welsh Assembly should be given the powers to introduce legislation for Wales, and asks that this will be enacted as quickly as possible. We hope that the forthcoming decision on legislation for Northern Ireland will reflect the views expressed in the recent consultation, when the overwhelming majority of responses were in favour of making all enclosed places completely smoke-free.

Government advisors including the Scientific Committee on Tobacco and Health, Chief Medical Officer and Health and Safety Commission have recommended that comprehensive smoke-free legislation is both desirable and necessary. Health organisations are united in support for such legislation, and public support is growing. This is a major opportunity to make major improvements to public health, with no half measures. We ask that Government meets the challenge.

Introduction
The BMA is a voluntary, professional association representing doctors from all branches of medicine across the UK. About 80% of practising doctors are members.

Our response is based upon a long-term interest in public health issues, and a particular commitment to evidence-based tobacco policies. Our recent reports include: The human cost of tobacco (2004), Smoking and reproductive life (2004), and Towards smoke free public places (2002).

Q1: Definition of “smoke” or “smoking”
The BMA believes that the definition should be amended to include any substance that is smoked, and not just those containing tobacco.

This amendment is needed on health and enforcement grounds.

There have been a small number of studies relating to non-tobacco products. These show high levels of carbon monoxide, particulate matter, and carcinogenic tar in smoke from non-tobacco products (see references 1-2).

In addition, although the market for herbal cigarettes is currently very small in the UK, it may cause enforcement difficulties if non-tobacco cigarettes are not included. It would be impossible for a manager or enforcement officer to tell the difference between a tobacco product and a non-tobacco product, which could undermine efforts to enforce the legislation.

Smoke-free legislation in New Zealand and Scotland includes non-tobacco products.

Q2: Definition of “enclosed” public place and workplace
The BMA believes that this approach will remove ambiguity when it comes to enforcement. However, the proposed definition of 70% enclosed is too high.

The Irish legislation covers all premises that are more than 50% enclosed. Experience there shows that businesses have proved to be very adept at pushing that definition to the limit. A 70% limit would make it easier for owners to get round the law.

The BMA believes that substantially enclosed should be defined as 50 percent of the wall and floor area, in line with Ireland’s legislation. The presumption should be that all premises are smoke-free unless specifically exempt.

Q3: Proposed regulation-making powers
The BMA would support the use of regulation making powers to strengthen the legislation, and include premises that would not technically be covered under the definition.

The Association would identify sports stadia, train stations and building entrances as priorities for inclusion under regulations. There is evidence that smoking in building entrances is perceived as an unpleasant and unintended consequence of smoke-free policies (see reference 3).

Regulations should not be used to provide additional exceptions to the legislation.

Q4: Exceptions – All licensed premises should have a longer lead-in time
“Asthma attacks are life threatening and
public smoking means that more and more
asthmatics either suffer attacks or end up
being excluded from social gatherings”
Eleni Duncombe, Medical Student, Southampton.

There is no justification for the licensed trade to have a longer lead-in time than other businesses. Each year of delay condemns an additional 54 hospitality workers to die as a result of exposure to second-hand smoke on the job (see reference 4).

Although some legislatures (eg California and New York) have phased in legislation over a period of time, this is often because smoke-free bar laws have followed legislation covering other enclosed places. The UK is practically alone in having no legislation at all on smoking in public places.

Ireland, Italy and New Zealand have all introduced legislation on the same date for all enclosed workplaces, including the licensed trade. England should be no different.

Lead-in periods of less than a year after the legislation is passed are common, and have not caused problems. In Scotland a lead-in of less than ten months is planned.

There is a danger that lengthier lead-in times could lead to momentum being lost before legislation enters into force. It is important that the public, businesses and enforcement authorities are given sufficient information and time to prepare, but there is no reason for this to exceed one year.

Q5: Exceptions – All licensed premises that do not prepare and serve food
“I am alarmed about a local pub worker who
has not smoked for decades but suffers
ongoing smoking related respiratory disease
because of a polluted working environment.
… the patient feels unable to change jobs because
of worries that health problems will make
the person unemployable. “
A BMA member

The BMA strongly opposes this exception.

Second-hand smoke kills, whether or not there are pies with the pints.

This proposal is arbitrary and inequitable. It has no basis in the health evidence, will leave many thousands of workers exposed to the lethal effects of second-hand smoke, and will increase health inequalities.

In the UK, smoking rates follow a distinct socio-economic gradient. Smoking rates range between 15% among professional groups, and 37% among those who are employed in routine jobs. Up to 52% of working age men who are economically inactive are smokers (see reference 5).

Detailed analyses of the licensed trade suggest that the government has underestimated the number of wet-led pubs in the UK.

The BMA’s Booze Fags and Food report (see reference 6) found that the proportions of non-food pubs ranged from 88% in Leeds, to 5% in Bromley. Overall, the majority of wet-led pubs were found in the North and Midlands – areas with higher levels of deprivation and smoking prevalence than the South.

Another survey has suggested that 52% of all licensed premises in the North East of England would be exempt, with figures ranging from 81% in Easington, which is the 6th most deprived area in England, to 23% in Tynedale, which is ranked 221st (see reference 7).

In a recent BMJ study (see reference 8), 43% of pubs in one English borough were wet-led. Non-food pubs accounted for more than half of all the pubs located in the most deprived postcodes, and less than one third in the most affluent areas. If these results were modelled for the whole of England, two thirds of English pubs would be exempt in deprived areas, compared with only a quarter in affluent areas.

This exemption will simply penalise the poor, who live in areas where wet-led pubs are the norm.

The poorest bar staff and customers will remain heavily exposed to second-hand smoke, and at risk of lung cancer, heart disease and other fatal illnesses.

Comprehensive smoke-free policies encourage and support smokers’ attempts to quit (see reference 9). Smokers who work and socialise in pubs which are not smoke-free are less likely to quit than those who do not. As smoking pubs are most prevalent in low income areas, this will further entrench high smoking rates amongst the most deprived.

The BMA is also concerned that pubs which currently serve food - and where this is not a major part of their income stream - might decide to stop, increasing the numbers of exempted premises. This effect is most likely to be seen in low income areas.

There is no meaningful choice of workplace for many bar staff. Employees in the hospitality sector are paid less than in any other industry sector (see reference 10), and often have little choice about where they work. Nobody should have to sacrifice their health to stay in a job.

The reality is that customers may not be able to exercise choice either – many of our deprived communities are low amenity areas where customers have little choice of social venues. For some, the only choice is between the risk of ill health or isolation.

The government has consistently identified a lack of public support as a barrier to implementing a comprehensive ban. Yet the evidence from other countries shows that public support for comprehensive legislation increases during the run-up to implementation, and once the law is in place.

In Ireland, the smoke-free law now has the support of 93% of the population, compared with 59% before the law was introduced (see reference 11), while in Norway, more than three quarters of the public supported the law by the end of the first year, an increase of 25 points in less than two years (see reference 12). In New Zealand, support for the smoke-free bars rose by 13 points, to 69% in the first six months after the law came into force (see reference 13).

In the UK, public support for a comprehensive law has markedly increased over the last year. Support for smoke-free pubs rose by 11 points between 2003 and 2004, (see reference 14) and polls consistently show that the majority of people support smoke-free policies. In a recent BMA poll, 7 out of 10 people agreed that protecting the health of staff working in pubs and bars by having them completely smoke-free was more important than allowing smoking in such places (see reference 15).

Despite the scare stories perpetuated by the hospitality trade and tobacco industry, via funded initiatives such as AIR (Atmosphere Improves Results), independent economic analyses find no evidence that smoke-free laws harm business (see reference 16).

It has been asserted that smoke-free legislation in all pubs will increase smoking in the home and place families at risk of increased exposure to second-hand smoke. There is no evidence to support this. All the available evidence suggests that smoke-free laws actually reduce smoking in the home – and especially smoking around children - because smoke free laws encourage smokers to quit (see reference 17). When fewer adults smoke, children’s exposure to second-hand smoke is reduced (see reference 18). The evidence also shows that former and continuing smokers are more likely to adopt smoke-free homes (see reference 19).

In Australia, the proportion of family homes with smoking restrictions more than doubled after smoke-free workplaces were introduced from 25% to 59%. In households where one adult smoked, the proportion with smoking restrictions rose from 17% to 53%; among those where all adults smoked, it increased from 2% to 32% (see reference 20).

In California, the proportion of children and adolescents living in smoke free homes increased from 38% in 1992, to 82.2% in 1999 (see reference 21), one year after all enclosed public places and workplaces became smoke-free state-wide.

Closer to home, survey data from Ireland shows that the number of smokers who have smoke-free homes has increased since the law came into force (see reference 22).

The difficulties involved in defining “prepared food” threaten to provide a range of loopholes, and increase the burden on enforcement authorities. Comprehensive legislation is simpler to enforce than partial bans.

Q6: Exceptions – Residential premises
The BMA believes that all exemptions to the smoke-free legislation must be kept to an absolute minimum, as has been the case in Ireland, Norway and Scotland. Exemptions should only be considered for places defined as people's homes, and a very limited number of other premises.

The Association accepts that there may be compassionate grounds to allow smoking in certain premises in specific circumstances. The human right to live and work without being exposed to poisonous and life-threatening substances must take precedence over any perceived right to smoke.

Where residential premises are declared exempt, the presumption should be that most areas are smoke-free, rather than smoking being allowed throughout. Policies should be revisited regularly. The responsibility of employers to protect worker’s health should always be paramount.

Stop smoking services should also be made available to long-term residents and non-resident employees should not be allowed to smoke on work premises. In respect of hotels the BMA believes that the presumption should be for smoke-free rooms.

The Association welcomes the commitment to develop smoke-free psychiatric facilities in the longer term. People who have been diagnosed with a mental health problem have as much right to protection as other people in society. There is evidence from Canada (see reference 23), the US (see reference 24) and Sweden (see reference 25), that smoke-free policies in psychiatric facilities can be effectively introduced, with major benefits to the health and well being of service-users and staff.

In addition, smoking cessation should be offered in all mental health facilities. Some service users have identified a ‘smoking culture’ surrounding psychiatric facilities, which promotes tobacco use, and may be a barrier to successful quitting.

The BMA would also emphasise the need for cessation services for older smokers in residential homes. Quitting smoking increases life expectancy in older smokers (see reference 26), and amongst those who are already suffering from ill health.

The Association is concerned about the proposal to omit prisons. Neither prison staff nor prisoners should be subjected to second-hand smoke in social areas, and non-smoking prisoners should never have to share a cell with a smoker. Prisoners should also be able to access stop-smoking support while in prison. On release, former prisoners can often be marginalised and may be less likely to access cessation services in the community. Ex-offenders who are heavily addicted to tobacco may find it even more difficult to re-integrate into a society in which smoke-free places are the norm.

Q7: Exceptions – Membership clubs
“Yesterday I talked to a 50 year old man
who has incurable lung cancer, not
through smoking himself, but from being exposed
to smoke in the club where he has worked for
30 years. He has a wife and five children.”
A BMA member.

Second-hand smoke kills. This proposal is nothing short of a ballot on worker’s lives, and it is rigged against the poor.

The BMA believes that protection from second-hand smoke must be a right for all employees, regardless of how their workplace is governed. Private members’ clubs must already comply with health and safety and employment law, as well as regulations on building safety and food hygiene.

At least 6 million people are registered members of clubs (see reference 27) - more than one in ten of the population. It has been estimated that if both pubs that do not serve food and members’ clubs are exempted from the legislation, more than half of licensed premises would be exempt. There would be significant variations by deprivation- two fifths of establishments in affluent areas would be exempt, rising to four fifths in deprived areas (see reference 28).

The BMA is also concerned that this exception will increase health inequalities.

Membership clubs provide an important social hub for the communities that they serve. It is most likely that those in areas with high smoking rates would vote to retain smoking. Clubs in low income communities would be likely to lose out in the ballot.

Many membership clubs are occupationally based. Members of miners’ clubs and boilermakers’ clubs, for example, are more likely to have developed occupational lung disease, such as pneumoconiosis, chronic obstructive airways disease, and asbestosis. Exposure to second-hand smoke will worsen the symptoms of these diseases.

The Coal Industry Social Welfare Organisation (CISWO) (Scotland) recently gave evidence to the Scottish Parliament’s Health Committee (see reference 29). The organisation argued for smoke-free legislation to apply to all members clubs for health and safety reasons. While acknowledging that some of its member clubs would rather be able to retain smoking, the organisation pointed out that many miners’ clubs were in favour of going smoke-free. The legislation was identified as an opportunity for clubs to work in partnership with health agencies and promote smoking cessation for their members.

Q9: Signage
The BMA welcomes the proposal for large and visible signage with a minimum size stipulated. The regulations must also stipulate that notice should be clearly visible to both employees and the public.

In the small number of residential premises that are exempt, signage should be clearly displayed to indicate whether an area is smoking or non-smoking.

Q10, Q11, Q12: Offences and Penalties; Defences; Enforcement
Evidence from other countries consistently shows that when smoke -free legislation is effectively and sensitively enforced, compliance rates are high. In places as diverse New York (see reference 30), Ireland (see reference 31), Massachusetts (see reference 32) and New Zealand (see reference 33), compliance rates have exceeded 90%.

Although the evidence shows that most smokers and licensees respect smoking restrictions, there is also a need to make sure that the sanctions are meaningful.

In Ireland the maximum fine is €3,000, and in New York, there is a sliding scale of fines ranging from $200 - $400 for a first offence to $1000 - $2000 for a third or subsequent offence. In both Ireland and New York, repeat offenders can have their licence to sell alcohol revoked.

The BMA believes that the Government should increase fine levels, and differentiate between initial offences and subsequent breaches. The legislation should allow for licenses to be removed from businesses that make no effort to enforce the law.

The BMA believes that the Government must make it a priority to enforce the legislation, and to resource local authorities appropriately so that they have the capacity to carry out their duties.

Q13: Licensed Premises Smoking at the bar
“A patient of mine worked for many years in the pub trade.
She began to suffer from chest infections, including
episodes of pneumonia. As a result of her ill health,
she can no longer earn a living managing pubs.
She simply can’t breathe in the smoky environment.”
Dr Dawn Milner, London

This proposal merely extends the rationale of the failed Public Places Charter for voluntary regulation of the licensed trade. The scientific evidence shows that this measure will have no meaningful effect on bar workers’ health.

No safe level of exposure to second-hand smoke has been identified, and the harmful gases and particles in smoke will diffuse into the available space, whether smoking is permitted there or not.

One US study found no differences either in the ambient levels of tobacco smoke or in the amount of nicotine absorbed by workers in smoking and non-smoking areas (see reference 34). An Australian study showed that designated ‘no smoking’ areas, including smoke-free rooms, provided partial protection from tobacco smoke at best. At worst, the data suggested that they provide no protection whatsoever (see reference 35).

The experience from other countries where such a phased approach to smoking restrictions has been tried shows that these policies are also impossible to enforce. In Norway, regulations stipulated that a third of premises should be non-smoking by 1993, rising to half of the area by 1998. There was, however, inadequate monitoring and enforcement of these regulations (see reference 36).

There is no justification for continuing to allow smoking in bars. Even separately ventilated designated smoking rooms do not provide protection from second-hand smoke.

In one Australian study, the air quality in some “non smoking” premises with a designated smoking room was no better than if smoking was allowed throughout, and in most premises the smoking room cut exposure by 50% or less (see reference 37).

Smoking rooms can leak smoke into the rest of the building, contaminating the rest of the space with second-hand smoke. Expensive ventilation systems are often incorrectly installed, ineffective or switched off altogether. Monitoring of these rooms has shown that the majority fail to pass the standards set by legislation – in one Canadian municipality, 78% of designated smoking rooms failed to meet the standards set (see reference 38).

Even if staff are not supposed to work in these areas, in practice it may be hard for low paid workers to refuse. In addition, cleaning staff will have to work in the room.

Finally, the use of designated smoking rooms creates an uneven playing field. Large scale operations can afford to designate space in this way, and to install ventilation systems, while smaller operators cannot. In Ottawa, small bar owners successfully won a court case to disallow designated smoking rooms because they created unfair competition (see reference 39).

Q14: Timetable
The BMA believes that the overall timetable provided for action is too long. Even allowing for the law to be introduced in Spring and Summer, as is proposed, the government’s timetable would delay smoke-free places for nearly three years.

The experience of other countries suggests that Spring or Summer would be the best times of year to introduce this legislation.

Whatever is decided, it is important that the timetable is well-publicised and adhered to.

Q15: Unintended consequences for binge drinking
The BMA is concerned the exemption for pubs that don’t serve food will encourage businesses to stop serving food altogether, and that this will encourage patterns of heavy and binge drinking.

The Association would expect that pubs where smoking rates are highest will switch away from serving food in response to the proposed exemption. This would affect those living in lower income areas, and pubs with a younger clientele, as smoking prevalence peaks in young adults aged between 20 and 24 (see reference 40). Increasing problem drinking in these age groups could increase violence and social problems in city centres, as well as establishing dangerous drinking patterns which could persist into later life.

Q16: Health Inequalities
The BMA is extremely concerned that the proposals on the licensed trade and membership clubs will increase health inequalities, both in terms of exposure to second-hand smoke, and because of the effect on active smoking.

Certain key inequalities in health have increased since 1997, despite the Government’s avowed intention to reduce these (see references 41 and 42). It is hard to justify the adoption of policies which will widen the gap between rich and poor still further.

Under the government’s proposals, the most vulnerable will be offered the least protection from second-hand smoke. In low income areas, four out of every five licensed premises will be exempt, compared with two in five in more affluent areas (see reference 43).

Bar workers are low paid, and the majority of employees in the hospitality sector (see reference 44) are women with few educational qualifications. More than two thirds of hospitality workers are of childbearing age. Exposure to second-hand smoke in pregnancy poses long term risks to child health, such as low birth weight (see reference 45) and premature birth (see reference 46), and women exposed to second-hand smoke stop breastfeeding sooner than non-exposed women (see reference 47). The government is already committed to protecting these women and their babies under EU Directive 92/85/EEC, yet no steps have been taken to ensure that employers meet their obligations. If the government allows these exemptions, pregnant women and breastfeeding mothers working in these environments will remain exposed.

Some other groups are also particularly vulnerable to the health effects of second-hand smoke. In the UK, 8 million people have lung disease, 2.1 million have angina, 1.3 million have survived a heart attack, and 300,000 have suffered a stroke (see reference 48). These conditions are significantly more prevalent in lower income groups (see reference 49).

The evidence shows that there are considerable additional public health benefits arising from smoke-free legislation, as it encourages smokers to quit and cut down, and may prevent young people from starting to smoke. These effects are greatest with comprehensive policies (see reference 50). Throughout England and Wales smoking cessation has been the biggest single factor in reducing deaths from heart disease, responsible for preventing nearly 30,000 deaths from heart disease alone from 1981-2000 Unal B, Critchley JA, Capewell S (2005) Modelling the decline in coronary heart disease deaths in England and Wales, 1981-2000 (see reference 51). The improvements have been disproportionately seen in the most affluent groups

Reductions in smoking prevalence will deliver significant health gains. The exemptions will be concentrated in lower income communities, which already have high smoking rates. The government’s latest status report on health inequalities shows that there has been no significant narrowing of the gap in smoking prevalence between manual groups and other groups since 1998 (see reference 52), falling short of government commitments to reduce health inequalities.

If the partial ban goes ahead, the evidence suggests that the gap will widen, reflecting the differences in quitting between comprehensive bans for the affluent and partial bans for the poor.

This would have a disastrous impact on the Government’s attempts to reduce smoking rates among manual groups. The BMA welcomes the increasing investment in specialist stop smoking services, and believes that manual groups should be a major target for this investment.

The motivation to quit smoking is similar across all social groups (see reference 53). Low income smokers are likely to find it more difficult to quit (see reference 54), with high levels of smoking and normalisation of tobacco use a key factor (see reference 55).

As Derek Wanless has already concluded, comprehensive smoke-free policies are needed to support cessation services for those who need them most (see reference 56). The BMA believes that this means that comprehensive smoke-free legislation, without inequitable exemptions, must be implemented without delay.

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