SUBMISSION BY SCOTTISH CONSUMER COUNCIL
PROHIBITION OF SMOKING IN REGULATED AREAS (SCOTLAND) BILL
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
- to change the attitudes of the public towards smoking in
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
- 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
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
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
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
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
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.
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?
4 Have you any comment on the practical implications
of putting these provisions in place and the consideration of
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.
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.