SUBMISSION BY SCOTTISH CONSUMER COUNCIL

PROHIBITION OF SMOKING IN REGULATED AREAS (SCOTLAND) BILL

Written evidence

The Bill aims to prevent people from smoking in public places where food is supplied and consumed, by making it a criminal offence to smoke or to permit smoking in these areas. These are described as “regulated areas”. The purposes of the Bill are

• to prevent people, including children, from being exposed to the effects of passive smoking in regulated areas;
• to raise awareness of the dangers of smoking and passive smoking; and
• to change the attitudes of the public towards smoking in general.

It would have the additional benefits of encouraging people who want to stop smoking, and helping ex-smokers from relapsing.

1 Do you support the general principles of the Bill and the key provisions it sets out?

The SCC considers that the Bill is based on the following principles and assumptions:

• Smoking, and the effect of passive smoking, are significant contributors to poor health in Scotland.
• Businesses and other enterprises providing food and drink to consumers in Scotland have not voluntarily moved towards providing smoke-free environments for consumers.
• There is no alternative to introducing regulation, in this case criminal sanctions, to promote this aspect of public health in Scotland.

The Scottish Consumer Council would like to contribute a consumer perspective on these issues, and will address each of these in turn.

1.1 Smoking, passive smoking and public health in Scotland

In its tobacco action plan “A Breath of Fresh Air”, the Scottish Executive states:

Smoking has long been recognised as the most important preventable cause of ill-health and premature death in Scotland, accounting for more than 13,000 smoking-related deaths every year. We know that it is linked to diseases of the heart and blood vessels, the lungs, stomach, kidneys and other organs and that as a result, it has been estimated the NHS in Scotland spends up to £140 million every year on treating smoking-related disease - at current prices this would amount to over £200 million.

The SCC recognises the serious impact which tobacco use has in Scotland.

Substantial research programmes in the USA, Australia and the UK have shown that passive smoking is a risk factor for a wide range of medical conditions including asthma, bronchitis, pneumonia, coronary heart disease, stroke, lung cancer, low birthweight and cot death, amongst others. Studies of lung cancer and passive smoking have shown that non-smokers living with smokers increase their risk of lung cancer by 20-30%. Similar research has been carried out in relation to heart disease. The World Health Organisation has estimated that almost half the world’s children are exposed to tobacco smoke. The Royal College of Physicians estimated in 1992 that 17,000 children in the UK under the age of five are admitted to hospital as a result of illnesses resulting from passive smoking. Action on Smoking and Health (ASH) has estimated that there are at least 2 million incidences of illnesses caused by passive smoking in the UK, including 12,000 deaths from heart attacks and more than 30,000 cases of respiratory disease in infants.

The tobacco lobby denies the validity of this evidence, criticising the research (for example the designation of someone as a never-smoker), countering it with research showing that passive smoking is not harmful, or comparing the harmfulness of passive smoking with other activities such as eating a high fat diet or drinking alcohol, neither of which is illegal. Some of this research, including a recent article in the BMJ has been criticised or discredited by the fact that it has been funded by the tobacco industry.

The SCC believes that the balance of evidence does show that passive smoking contributes to poor health in Scotland.

1.2 Is this a case of market failure?

An unresponsive market

The increasing concern about the effects of passive smoking, and the recognition that many people prefer a smoke-free environment, has led to changes in policy and practice by many service providers to limit the amount of exposure which consumers or employees have to environmental tobacco smoke (ETS). Almost all public transport, cinemas, and other public entertainment venues now ban smoking, as do most workplaces.

However, the provision of smoke-free areas in the hospitality industry has not increased significantly, and there are almost no smoke-free pubs in Scotland. The Scottish Voluntary Charter on Smoking in Public Places introduced in May 2000 has had very limited impact. In 2003, three years after the introduction of the voluntary charter, 21% of restaurants had banned smoking, but no public houses had done this.

The proportion of people smoking in Scotland has fallen considerably, and is now around 30%. Almost three-quarters of people (73%) who responded to a BBC survey wanted a ban on smoking in all public places as a way to cut tobacco-related illness. However, the market has not responded to this consumer demand.

The market in this sector is characterised by some differences from the classic market situation in which individuals make choices based on their own needs and situation. People going out to a pub or restaurant are often in the company of others, and as long as one of the party smokes, they may be more likely to opt for a pub or restaurant which allows smoking. Since restaurants will normally cater for smaller groups and couples, and since more people will want to eat in a smoke-free environment, it is understandable that the number of non-smoking seats and environments has increased more in this sector. Pizza Hut has recently introduced a no smoking policy in all its restaurants.

It is also natural for a market to want to retain the largest possible number of consumers. To create non-smoking premises means reducing the size of the potential market, even if it may at the same time increase its appeal to one sector of the market. This may explain why the Wetherspoon chain has called for a ban on smoking in public places: they recognise that to introduce non-smoking pubs on a unilateral basis is likely to be bad for business if the choice remains for people to smoke in other licensed premises.

The SCC considers that the pub and restaurant business has failed to respond to the majority of the Scottish population who do not smoke and who would prefer to eat in a smoke free environment.

Externalities

A market can also be described as failing if it has an impact on an economic activity outside its own market, for example if a factory creating pollution imposes costs on other enterprises: this is known as externalities. It is possible to see the food and drink sector in Scotland as imposing costs on people and organisations not directly involved in the particular market transaction. For example, the NHS bears considerable costs resulting from smoking and passive smoking, while employees in pubs are at risk from their exposure to environmental tobacco smoke.

1.3 Response to market failure: is there an alternative to regulation?

There are various factors in the present situation which might mean that the market will respond without it becoming necessary to impose a ban.

Threat of a ban on smoking

There is some evidence that if there appears to be a real prospect of legislation akin to that introduced in Ireland, the market might respond to this threat in order to avoid the compulsion of legislation.

Such a threat does exist, as the Chief Medical Officer has argued that a smoking ban in workplaces in Glasgow would mean that up to 1,000 fewer people a year would die of heart disease, respiratory diseases and cancer. He said it was his duty to speak in favour of a complete ban on smoking in public places and he urged the executive to take the lead and introduce legislation which would result in such a move.

However, the problem here, as described above, would probably be that many businesses would be unwilling to be the first to make a move because it restricts the size of the market.

Threat of compensation claims

There is potential for employees to take legal action against employers who expose them to ETS. ASH in association with a trade union law firm is trying to encourage employers to respond to this threat. While employees may initiate such claims, this is not a realistic option for consumers, as they would find it even harder than employees to prove causation, and there are aspects of the legal process which act as a deterrent to using the law in this way, for example the length of time and cost of legal action, and the lack of class actions in Scotland.

Effect on profits

There is contradictory evidence about the impact of smoking bans on business profits. While businesses fear that a ban will mean people stay at home to smoke, or spend less time in a pub, there is evidence from New York that businesses have not been adversely affected, with some businesses experiencing increased profits following the ban on smoking.

However, the real fear for pubs and, to a lesser extent, restaurants is of the effects on profits of voluntarily introducing smoking bans. This appears to be a real obstacle to progress being made without regulation and the introduction of criminal sanctions.

Regulation

Some businesses are in favour of a ban, as evidenced by the chair of the Wetherspoon pub chain who called on the government to follow the example of Ireland, which recently outlawed smoking in public places. The Chairman of Wetherspoon has argued that self-regulation is not the answer.

"I think it would just be commercially very difficult if it's not done through a government ban. It requires a cultural adaptation by people and I think they wouldn't be prepared to do it if it wasn't the government cracking the whip.”

However other publicans have come out strongly against a ban, arguing that it cannot be justified to ban something which is not illegal. They argue that cultural change will lead to many more non-smoking premises in time, but that in the short term a ban would force many independent pubs out of business.

On balance the SCC believes that the difficulty of influencing the market through the individual choice of consumers, combined with externalities in the market, means that a significant shift to smoke-free eating environments will only be achieved by regulation in the food sector. On this basis the SCC supports the principles and assumptions underlying the Bill.

2 Are there any omissions from the Bill that you would like to see added?

The Bill is limited to premises and areas of premises where food is served. It does not go as far as banning smoking in all workplaces, which would have the effect of banning smoking in pubs. It should be seen as a first step in creating the clean environments preferred by most consumers.

3 What are your views on the quality of consultation, and the implementation of key concerns?

No comment

4 Have you any comment on the practical implications of putting these provisions in place and the consideration of alternative approaches?

The Bill takes the approach of introducing criminal sanctions. There can be problems with using criminal sanctions, in particular the willingness of the police and procurator fiscal office to undertake prosecutions. It is important that any law can be enforced and that resources are available to do so.

While it can be effective to introduce criminal sanctions, there are also examples where such legislation has not been so effective – in relation to criminal sanctions for dropping litter, for example. It is difficult to judge what would be effective in advance of implementation.

The reluctance of service providers to leave themselves open to criminal prosecution could lead to unintended consequences. For example, some pubs might stop serving food, leading to a reduction in consumer choice, and a move away from the trend in Scotland, which has been towards a wider range of services and a more open style.

Conclusion

In conclusion, the SCC seeks a balanced approach to this problem. We are not in favour of making smoking illegal, and our response is informed primarily by our wish to see the market respond more effectively to the wishes and needs of the majority of consumers in Scotland in this area. We believe that the failure of the market to respond to the preferences of consumers requires regulation, to ensure a shift to smoke-free eating environments.