15.3 Opposition to and weakening of smokefree environment legislation

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15.3.1 The ventilation debate

Technology cannot control tobacco smoke to minimal levels for workers or customers, without a "tornado-like level of ventilation".38 p5 The tobacco industry strongly pursued the 'ventilation option' for many years, through various forums and in arguments to governments about appropriate management of SHS.39, 40 In Australia, Philip Morris (PM) used Healthy Buildings International (HBI) to advocate ventilation solutions to SHS exposure in workplaces. HBI publicly denied its association with the tobacco industry. HBI breached Standards Australia protocols in providing PM with confidential public submissions made to a review of the Australian standard on ventilation and acted as an undeclared cipher into the review for PM's concerns, leading to the eventual dismissal of the HBI representative from the standards subcommittee.41

15.3.2 The economic impact of smokefree policies

During the lead-up to smokefree licensed premises, the Australian Hotels Association (AHA) made "wildly exaggerated economic predictions" about the likely effect of a smoking ban.42 p 679 The tobacco industry has consistently claimed that banning smoking in dining and licensed premises measures would lead to a 30% or greater decline in sales.43 These industry claims have been countered by the many studies published in the peer-reviewed scientific literature that assessed various objective economic impacts of these regulations on bars and restaurants.44 Objective indicators of economic impact include sales tax receipts and revenues, employment, and the number of restaurant and bar licenses issued by state health departments and state liquor authorities. Studies anlaysing these sorts of indicators have generally found no evidence of negative economic impacts.

A 2003 review examined the discrepancies between tobacco industry and non-industry funded research on the economic effects of smokefree policies. Ninety-four percent of the tobacco industry supported studies concluded a negative economic impact compared to none of the non-industry supported studies. No peer-reviewed study found an adverse economic impact of smokefree laws on restaurants and bars. Of the studies that used objective indicators and controlled appropriately for underlying economic trends, none detected a negative economic impact. The reviewers, concluded that, "policymakers can act to protect workers and patrons from the toxins in second-hand smoke confident in rejecting industry claims that there will be an adverse economic impact".45 p13

15.3.3 The 'enclosed spaces' loophole

As smoking has been mostly banned within enclosed areas of dining and licensed premises, the need to precisely define the term enclosed has emerged. There is a great deal of variability across states. In ACT, NT and NSW the definition of 'enclosed' means a structure that has an overhead covering or a roof and is 75% enclosed. In SA, the threshold is 70%. In WA, a structure that has a roof and is 50% enclosed around its sides is considered to be enclosed. In Qld, Tas, and Vic the term 'substantially enclosed' has been used and no specific percentage has been specified.

In practice this means that attractive and sheltered areas have been built by clubs, pubs, bars, cafes and restaurants to accommodate smokers when legislative changes have occurred. Given that researchers have shown that SHS can reach dangerous levels in these sorts of crowded areas46, hospitality workers in most states are not fully protected by 'enclosed' smoking bans.

During the debate to enact smokefree legislation in NSW, MP, The Hon Dr Arthur Chesterfield Evans, expressed his frustration with the 'enclosed' loophole, "the regulation definition to allow areas almost 75% enclosed to be defined as not enclosed—which will allow smoking to continue—will fail to protect workers or patrons, including gamblers, from the well-known, seriously harmful effects of second-hand smoke ... No-smoking indoors should mean no smoking indoors."47 p21501