Smoking ban faces further revamp
By The Holland Times Thursday 15 October 2009, 16:10
Legal action by small cafés and bars across the Netherlands fighting the Dutch Tobacco Act may result in modification of the current law.
Efforts to modify last year’s revamp of Article 10, 11 and 11a of the Dutch Tobacco Act have nudged closer to an outcome due to vigorous involvement against government prosecutors from an unexpected heavyweight: small bars.
The smoking ban that ignited complaints from small café owners resisting a smoke-free workplace in the Netherlands faces possible alteration to exempt cafés with no employees.
Small bars stand up
“There’s confusion with a small part [of legislation] about if cafés without personnel should be accepted in the legislation or not. The confusing part is that two different minor courts have ruled completely the opposite ways,” says Saskia Hommes, press officer to the Dutch Minister of Health, Ab Klink.
The Dutch Tobacco Act came into practice in 1990 and has since undergone numerous alterations. As of 1 July 2008, the latest addition was to include the hospitality, sports, arts and culture industries as smoke-free areas for its employees. The legislation heavily emphasizes its rationale on the concern of healthy environments for staff workers.
“The difficulty in the whole legislation is that Dutch policy chose not to say ‘you can’t smoke in public places’, but instead say ‘we protect all employees from other people’s smoke’. Because of that choice there are all kinds of exceptions,” says Hommes.
Media attention recently covered the case of Café Victoria, a small bar in Den Bosch that decided to appeal its fine for flouting the smoking ban. The judge ruled in favour of Café Victoria, with a court statement saying that the ban “lacks legal grounding” with regard to small businesses with no staff. The ruling has since been frozen by prosecutors due to a conflicting outcome from a similar case with Café Kachel.
Groningen’s Café Kachel recently appealed its case to the Leeuwarden Court of Appeals after being found guilty of violating the smoking ban in the lower civil court. The final verdict will be delivered by 3 July 2009, thus re-launching the debate on whether small bars should be exempt from the smoking ban if there are no employees to protect.
“The minister says he wants to wait to see what this high court says before thinking to change the legislation. His intention, however, is not to change the practice of legislation. He wants to keep things smoke-free,” says Hommes.
Whether to amend the Tobacco Act in favour of smokers or the smoke-free has sent both sides into a dust cloud of debate that has yet to settle.
Tobacco industry influence
Concern circulates around the possibility that amending legislation could lead to a slippery slope of exceptions. Marc Willemsen, assistant professor in the Department of Health Education and Promotion at University of Maastrict, and head of research at Stivoro, an institute that promotes smoke-free living, underlines the necessity to keep legislation equal throughout the entire hospitality industry.
“You open the door for a sliding hill with no capacity to control the situation. What’s then the definition of a small café? Also, if you have an owner with two employees then the owner can fire them and still have them work on the black market,” says Willemsen. “An exception to the legislation would only complicate matters.”
However, the opposition sees this potentially fractured Tobacco Act as a way to press for the rights of not just small bar owners, but also smokers.
Tom Wurtz, Founder and Chairman of Stichting Rokers Belangen (Smoker’s Interest Foundation) and Stichting Red de Kleine Horeca (Foundation to Save the Small Hotel and Catering Industry), explains that his organisation supports the battle to rid bars from the smoking ban, arguing: “Nobody understands why there should be a smoking ban in all pubs and not just the pubs with employees.”
An article in May’s edition of FEM Magazine stated that Wurtz’s ties with the Foundation of the Cigarette Industry (SSI) and tobacco lobbying firms have led large tobacco companies, like British American Tobacco, to lend a hand in providing judicial advice for small bars. Free legal tips include pointers like offering small bars creative ways around the smoking ban whilst keeping within the legal lines.
“If the owner of a pub without employees smokes, and his customers smoke, why can’t they decide for themselves what they do?” asks Wurtz.
Wurtz and other organisations opposed to the smoking ban have legally and financially backed Café Victoria and Café Kachel in their cases. If the pending verdict from Leeuwarden Court of Appeals rules in their favour, Wurtz says their next step is to claim a sum totalling 100 million euros caused by smoking ban financial damages to approximately 5,000 pubs in the Netherlands.
“If we lose then we will see what the Supreme Court wants to say about it,” says Wurtz. “The main argument against us is that it’s a health issue. We say yes, that is possible, but the law says differently and we disagree with valid arguments.”
Yet, efforts to prove lost profit in small businesses due to the smoking ban are eclipsed by other probable reasons, such as the current economic crisis or simple free market laws.
As Willemsen describes it: “Small cafés struggling to economically survive will suffer because they only have a small number of people visiting each day. Maybe they’re all smokers, and if they don’t visit there’s immediately a problem for them. But from the data, I see only a small number that’s in trouble.”
Willemsen believes the biggest burden for small cafés lies within their willingness to accept support from the tobacco industry. “Small cafés can be weak and without much money, and now they’re being advised by big lawyers that know how to say the right things. This is the reason why they’ve come so far.”
More detailed legislation
One thing is agreed upon on both sides of the controversy –the legislation is poorly worded. If, for example, the Tobacco Act’s latest inclusion of the hospitality industry were to emphasize health concerns for all patrons, then less wiggle room would be available for modification. Hommes says, “To be honest that would have been easier.”
“There should have been a much clearer starting point from a public health perspective. Cafés and restaurants are public territory, and all other public territory is smoke free. If you want to improve the health of your inhabitants, there’s no reason why cafés and bars should be exempt,” says Willemsen.
For the remaining larger cafés and restaurants, the Food and Consumer Product Safety Authority (VWA) stated that 90 percent of the 42,500 businesses in the restaurant industry have adhered to current Tobacco Act legislation.
“Most cafés and restaurants have a smoke-free area and are quite satisfied by it,” says Willemsen. “Small cafés can only lose [the legal battles], and I feel very sorry for them because they’re just being used by big tobacco companies.”
Until the final verdict is revealed, however, Wurtz and the small bars he represents remain confident that legislation will favour their arguments. “If the smokers fall in this society then who are the next ones? You have to fight for your rights,” he says.
According to the Dutch Ministry of Health’s website, 27 percent of all adults 15 years and older, and 24 percent of youth ages 10 to 19 in the Netherlands were considered smokers in 2008.
