THE IMPORTED TOBACCO PRODUCTS ADVISORY COUNCIL
ITPAC represents the interests of 12 importers of tobacco products, the majority of which are small private companies, engaged in the distribution of tobacco products on a national scale within the UK. A number of ITPAC's Members are principally engaged in the distribution of specialist tobacco products including cigars, and they will be particularly affected by measures which curtail the responsible usage of their products in the hospitality sector.
ITPAC welcomes the opportunity afforded by the Health Committee's invitation for consultation on the above-mentioned Bill and would make the following comments:
1. The Public Health Justification for the Bill
There have been many studies into the effects of environmental tobacco smoke (ETS), and
it is widely recognised that these studies are inconclusive. The findings have been inconsistent and, even where a positive association has been indicated, it has been of a very low order of relative risk and well below that normally regarded as being significant and indicating a causal link. It is not considered appropriate to pursue the path of legislation when there is no firm evidence to prove that ETS represents a serious risk.
2. Government Position
Government at Westminster continues to favour the voluntary approach to restrictions on smoking in public places.
The Scottish Executive is following a similar path with its Scottish Voluntary Charter on Smoking in Public Places, and we understand that the Department of Health and Community Care are loath to introduce legislation unless it has the clear support of the public.
Should such support become evident the question of the possible consequences of the regulation of smoking in Scotland becoming different from that in England and Wales is not addressed in the Bill, its Explanatory Notes or the other accompanying documents.
3. Legalistic Approach
There is no need to add to the law. The legalistic approach to regulating smoking is inappropriate and unnecessary; market mechanisms and voluntary responses driven by consumer demand are the appropriate and proper route.
The public wishes to see the provision of more non-smoking areas; it has not expressed a view that this should be achieved by prohibiting smoking when voluntary self-regulation is proving to be increasingly effective. In this context much progress is being made by
the Scottish Voluntary Charter.
4. Rights of Owners/Operators
The Bill is not proportionate and doesn't strike a fair balance between the rights of individual proprietors and the general interest in protecting public health.
Whether an establishment permits, prohibits or otherwise regulates smoking should rightly be a matter for the owner/operator to decide. These people are driven by customer demand and commercial expediency; where there is a requirement for a smoking ban, or for separate smoking areas, they will and do respond.
5. Freedom of Choice
Consumers are not compelled to give their custom to an establishment if they do not care for some aspect of that particular place. If they have concerns about the establishment's cleanliness, service, smoking policy or any other issue they will express their freedom of choice with their feet and their wallet.
6. Definition of a Regulated Area
Whilst the Bill only prohibits smoking in certain enclosed public spaces, the definition of a regulated area is written in such terms as is likely to lead to much dispute and argument; the terms are such that they would effectively prohibit smoking throughout in certain establishments.
7. Clarity of Enforcement
It is wholly unsatisfactory that the Bill, which creates 3 new criminal offences, does not contain explicit provisions for enforcement; given the absence of such provisions it is possible to foresee a high degree of non-compliance and disrespect for the law.
There could be much dispute about the application of the Bill's provisions to individual premises and also dispute about the separate offences of permitting smoking, and smoking in a regulated area.
8. 5 Day Rule
The requirement that an enclosed space must be smoke free for a minimum of five days before food is provided should be of particular concern to hotels where the use of conference and private rooms may need to be varied from day to day. It will also have a particular impact on the use of village and community halls, centres and other similar facilities. The rule itself is wholly unwarranted, not justifiable on any sensible grounds, and will indeed seriously undermine the actual ability of significant numbers of premises to survive.
The Bill legislates for all premises where food is supplied and consumed; its provisions take no account of the vast variety of such premises and the implications of the application of a single regime for such regulated areas. The costs of compliance
(involving design, layout and structural changes to the premises) for any outlet providing food and wishing to provide facilities for smokers outside the area where the food is provided would, in many instances, be high and for a great many would be prohibitive leading to the closure of those premises.
Tourism in Scotland is a £4 billion industry which employs 200,000 people and which plays a significant part in supporting the social fabric of fragile and remote areas; an important part of this is high value added tourism (particularly from the USA and key European countries) involving such activities as Scotch Whisky industry hospitality trips, golfing, fishing, stalking and shooting. The imposition of draconian regulations on the hospitality infrastructure could well be expected to have an adverse influence on the decision by certain customers to visit Scotland.
11. Estimates of Compliance
The estimates of compliance and prosecutions provided in the Financial Memorandum are fanciful and unrealistic and have no relevant sound basis.
This Association considers that such a prohibition imposed by way of legislation is not the regulatory route preferred by the wider public. Market forces and the voluntary adoption of self-regulatory measures are achieving rapid progress in the adoption of smoking policies that meet the preferences of customers and reduce the exposure of non-smokers to the smoke of others. We therefore do not believe that this Bill is justified.
We feel that the issues we have raised above are important and we trust you will give them due consideration.
Should the Committee wish for further elaboration of this evidence, or any other additional information, ITPAC will be pleased to respond.