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This page looks at common arguments arising out of challenges to laws providing for protection from exposure to tobacco smoke.
1. Protection from exposure to tobacco smoke under the WHO FCTC
Under Article 8 of the WHO FCTC, Parties 'recognize that scientific evidence has unequivocally established that exposure to tobacco smoke causes death, disease and disability'. They commit to adopt and implement 'effective legislative, executive, administrative and/or other measures, providing for protection from exposure to tobacco smoke in indoor workplaces, public transport, indoor public places and, as appropriate, other public places.'
The Guidelines for Implementation of Article 8 (Article 8 guidelines) adopted by the Conference of the Parties at its second session note that:
- 'There is no safe level of exposure to tobacco smoke' (para 6)
- 'Effective measures to provide protection from exposure to tobacco smoke, as envisioned by Article 8 ... require the total elimination of smoking and tobacco smoke in a particular space or environment in order to create a 100% smoke free environment' (para 6)
- 'Legislation is necessary to protect people from exposure to tobacco smoke. Voluntary smoke free policies have repeatedly been shown to be ineffective'. (para 8)
- 'The duty to protect from tobacco smoke, embodied in the text of Article 8, is grounded in fundamental human rights and freedoms', including the right to life and the right to the highest attainable standard of health recognized in a number of international legal instruments. (para 4(a))
The Article 8 guidelines, sample legislation implementing Article 8, and resource documents are available at http://www.who.int/fctc/guidelines/adopted/article_8/en/
2. Common grounds of challenge and responses
Laws providing for protection from exposure to tobacco smoke have been challenged on the grounds of:
- Personal autonomy of individual smokers to smoke in public, and
- Economic freedoms of businesses to serve smokers
Responses which parties have successfully used against such challenges include:
- Smoke-free laws do not restrict personal autonomy, because they do not prohibit smoking, but merely regulate where it may occur. (see, e.g., Case 2158-2009)
- Smoke-free laws do not restrict economic freedoms, because they do not prohibit conducting or attending a business, but merely whether smoking may occur at that place of business. (see, e.g., Case 2158-2009)
- In any case, any interest in being able to smoke in a public place is outweighed by:
- The right of the public and workers not to be exposed to tobacco smoke (see Miroslav Grcev and 5000 Citizens)
- The public health aims of encouraging smokers to quit, denormalising smoking, and limiting third party or occupational exposure to tobacco smoke (see 5000 citizens)
- The known efficacy of smoke free laws as a public health measure and the absence of equally effective alternatives in reducing smoking and exposure to tobacco smoke (see 5000 citizens)
- The state’s obligations under the WHO FCTC and the right to health and/or life, where constitutionally relevant (see 5000 citizens, Miroslav Grcev)
3. Illustrative case examples
The cases below illustrate how bans on smoking in public places and workplaces have been challenged since the WHO FCTC came into force; how parties have framed their defences to such challenges; and how courts have considered the issues at stake. The list is not exhaustive but rather shows examples of how issues have been framed in different legal challenges.
Claim of unconstitutionality filed by over 5000 citizens against Article 3 of Law No. 28705, Docket 00032-2010-PI/TC, 19 July 2011 (Constitutional Court of Peru)
A group of five thousand individuals brought a legal action against a law which banned smoking in all enclosed public spaces and in open spaces of health and education institutions. The group argued that the ban unreasonably restricted the right of smokers to free personal development, as well as the right to free enterprise and free private initiative.
The Court held that neither of these rights was absolute. They could be narrowed for other constitutionally valid ends, including health. The Court noted that smoking was addictive and caused irreparable harm, and the restriction on personal autonomy and free enterprise/private initiative was minimal, as it only regulated where smoking could take place. The court emphasised the importance of the right to health under the Peruvian constitution and international law, finding that the WHO FCTC was a human rights treaty with ‘constitutional rank’, because it outlined the content of a state’s duty to protect the right to the highest attainable level of health. The court found that it was therefore not only constitutionally valid to implement the WHO FCTC, but constitutionally obligatory.
The Court found that the smoke-free law was proportional to this constitutionally obligatory end of implementing the right to health, because it was suitable to reducing tobacco use; there was scientific evidence that a public smoking ban would be effective in reducing smoking and exposure to tobacco smoke; there was no equally effective alternative; the harm from smoking was large; the utility from smoking was non-essential; and banning smoking in public places was a minor limitation on freedom of commerce and autonomy. The Court rejected an argument that there should be an exception for smokers-only establishments; it found that the law was not just aimed at the protection of non-smokers but also had the purpose of encouraging smokers to quit and limiting the occupational exposure of employees. The Court considered it valid to limit the second-hand exposure of employees even if they were smokers themselves, as second-hand workplace exposure would still expose workers to significantly more health risks than they would face from their own personal behaviour and the smoker would not necessarily have the bargaining power to refuse such working conditions. The Court also rejected an argument that the open-air spaces of health and educational establishments should be excluded, as the aim of denormalising smoking in such establishments was a valid consideration.
Miroslav Grcev and Stamen Filipov to the Constitutional Court (Former Yugoslav Republic of Macedonia, 2009)
The Constitutional Court of Macedonia heard a challenge to a ban on smoking in public places, which also banned smoking in private-sector catering facilities and required private sector hotels to have smoking rooms limited to no more than 30% of the total number of rooms. The Court held that the smoking ban did not infringe on the right to personal autonomy or the right to free market decision-making. The law did not infringe the right to personal autonomy, because it not prevent smokers from accessing public places, nor did it interfere with the personal decision to smoke. Instead it merely regulated smoking in public places so as to take into account the constitutional duty of smokers not to jeopardise the life and health of others. The Court also found that the smoking ban in private-sector catering facilities and the restriction on smoking rooms in hotels did not violate the right to free market decision-making, as this right was not absolute and was subject to other constitutional rights and duties. In arriving at its decision, the court relied on the importance of WHO FCTC implementation, and the right to health as enshrined in the International Covenant on Economic, Social and Cultural Rights.
Case 2158-2009 of the Constitutional Court of Guatemala (Guatemala, 2009)
The Constitutional Court of Guatemala held that a ban on smoking in enclosed public places did not violate the constitutional freedom of commerce, the right to personal security, or the right to equality, and was within the power of the legislature. The court emphasised that health was a fundamental right, recognised in international treaties and in the Guatemala Constitution, and that the state had a constitutional duty to oversee the health of its people as a public good. Signature, ratification, and implementation of the WHO FCTC was part of the State’s public policies to fulfil this fundamental right. The Court emphasised that the State was required under article 8 of the Convention to implement effective measures to protect people from exposure to tobacco smoke.
The court found that the ban did not interfere with freedom of industry and commerce. The measure was not aimed at regulating the manufacture, production, distribution, and marketing of tobacco products, but rather aimed at regulating consumption to protect the right to health of consumers and non-smokers. The Court also found that the law was sufficiently precisely defined and therefore did not interfere in any way with personal security rights; that an exception for a small number of smoking rooms in hotels did not discriminate against other establishments; and that the legislature had the power to set fines for breaches of the law.
4. Further resources
Guidelines for implementation of Article 8 (protection from exposure to tobacco smoke) http://www.who.int/fctc/guidelines/adopted/article_8/en/
WHO Regional Office for Europe, ‘Comprehensive smokefree legislation is essential in protecting the health of others’, Tobacco Control Playbook https://tobaccoplaybook.net/en/001-comprehensive-smokefree-legislation.html
WHO Regional Office for Europe, ‘Smokefree legislation does not harm the hospitality industry’, Tobacco Control Playbook, https://tobaccoplaybook.net/en/003-smokefree-legislation.html