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Legal loophole sees hundreds of Dutch cafes escape smoking ban

BMJ 2009; 339 doi: https://doi.org/10.1136/bmj.b2824 (Published 13 July 2009) Cite this as: BMJ 2009;339:b2824
  1. Tony Sheldon
  1. 1Utrecht

    The smoking ban in Dutch cafes and restaurants has been partially suspended after a second appeal court ruled that the law does not apply to small cafes that do not employ staff.

    Consequently, the health minister Ab Klink has temporarily halted enforcement of the smoking ban on possibly thousands of these smaller cafes run by their owners alone. Checks and fines imposed by the Food and Consumer Product Safety Authority will cease until the law is changed, in what is seen as a public health “disaster.”

    The law remains in force for larger cafes that employ staff.

    Mr Klink plans to amend the law, to remove any “lack of clarity” and to create a completely smoke-free hospitality industry “without exceptions.” But this must first go before parliament and so cannot come into force until the third week in September.

    The move was forced by a judgment from Leeuwarden appeal court, which overturned an earlier conviction against a cafe owner for failing to implement a smoking ban. It ruled, “There is no clear obligation in the text of the law for a hospitality industry business without personnel to establish a smoking ban.”

    The judgment turned on whether employers’ obligation to take “measures” to prevent nuisance from smoking were the same as a “smoking ban.” Linguistics allows the word “measures” room to mean something other than a “smoking ban,” it states.

    It concluded that the article that includes the words “smoking ban” did not apply here.

    The small cafe De Kachel was originally fined €1200 (£1000; $1700) and given a conditional one month closure order. The successful appeal follows a similar judgment by the Den Bosch appeal court. The public prosecution service has now appealed both judgments to the Supreme Court.

    The Netherlands has 18 000 hotels, restaurants, and cafes. Of these, 8000 are deemed small businesses, and to date 1269 cafes without staff have been fined for contravening the smoking ban.

    Onno van Schayck, professor of preventive medicine at Maastricht University, thinks that the Netherlands should have followed the same path as Ireland and the United Kingdom and banned smoking on grounds of public health too rather than just employee protection. He thinks that the law reflects Dutch concerns about government interference in people’s lives. “It would not fit into a liberal Dutch way of thinking,” he said.

    Lies van Gennip, director of the antismoking lobby Stivoro, thinks that amending the law now is good news in the long run. She said, “I am very optimistic that after months of uncertainty we can arrive finally at a completely smoke-free industry safe from the damage of passive smoking.”

    The Asthma Funds, representing one million Dutch patients with lung disease, called for an unequivocal law for the whole hospitality industry protecting employees’ and customers’ health alike.

    The Dutch law banning smoking in enclosed public spaces, based on European legislation to protect employees, came into effect in July 2008 (BMJ 2008;337:a2679, doi:10.1136/bmj.a2679). A survey this month by Stivoro showed that exposure to tobacco smoke has since fallen among cafe customers from 71% to 17%.

    Notes

    Cite this as: BMJ 2009;339:b2824