Extending the smoking ban in the Netherlands: the 2008 amendment to the Tobacco Act

The initiative

The Tobacco Act was first adopted in 1988 in the Netherlands, and prohibited smoking in public buildings and public transport. In 2004, the scope of the law was widened to include non-hospitality workplaces, except in separately ventilated areas not serviced by employees.[4]

These restrictions were extended to the hospitality industry in July 2008. The amendment of the law applied to shopping malls, tobacco shops, gaming establishments, and convention centres, also covering restaurants, cafés, bars, festival tents, and nightclubs, except in separately ventilated areas that are not serviced.[5]

The expansion to the hospitality sector brought Dutch legislation in line with that of most of Western Europe. However, it applied to tobacco smoking only, and was intended specifically to limit non-smokers' exposure to passive smoking in public or communal places.[6]

The extension to the hospitality sector was initially more successful in restaurants than in bars, but it was still extended to all these businesses, and fines for noncompliance were increased. “In February 2010, the Dutch Supreme Court ruled that the smoking ban must also apply to owner-run pubs and cafés without employees, thus rejecting an earlier ruling that small bar and café owners were exempt... In order to combat noncompliance, fines for violations of the smoking ban were doubled in August 2011 to now reach €600 for the first violation, €1,200 for the second violation, €2,400 for the third violation and €4,500 for the fourth consecutive violation.”[7]

By 2010, after continuous opposition, the ban was partially reversed. “In November 2010, the new minister of health, Edith Schippers, wrote to parliament announcing her intention to exempt owner- or family-run bars under 70m2 from the Tobacco Act. As a result, compliance for hospitality sectors other than bars was above 90 percent, but only 50 percent in bars and nightclubs.”[8] This reversal was blamed on a failure to present and defend the law as a way of protecting non-smokers, together with continuing to allow smoking rooms.

The challenge

The harms of smoking tobacco have long been recognised across the world as a serious health threat, and measures have been taken in many countries to restrict its consumption. The Netherlands is no exception in accepting its seriousness: “Every year more than 27,110 of its people are killed by tobacco-caused disease”.[2]

Despite this threat, smoking regulation in the country has failed to keep pace with that of other countries. “Critics have warned that Dutch legislation and policy increasingly lag behind that of other countries when it comes to regulating tobacco."[3] This has been especially the case with respect to the lack of a firm smoking ban in public spaces and workplaces, the absence of warning labels, limited tax increases, a failure to ban displays of cigarettes, the high number of sale points, and the absence of a comprehensive tobacco control campaign. Arguably, this may be ascribed to the emphasis the Dutch place on autonomy and individual freedom.

The public impact

The ban had some impact in reducing the number of active smokers in the country. “Since the smoking ban on 1 July 2008, 13 percent of Dutch adult smokers have quit and 37 percent have tried to quit. 30 percent of smokers and 13 percent of quitters say that smoking restrictions in public places have made them think about quitting."[9]

However, its adoption by businesses was problematic, and the government ended up reversing its enforcement in owner-run bars because the policy had an impact on the economic performance of entertainment businesses, which limited their compliance. “Bars claimed economic loss and continued violating regulations. Media coverage of these actions created an atmosphere in which small bars felt they were supported by the general public. Some bars made pacts with nearby bars to defy smoke-free regulations, others became aggressive with VWA [Food and Consumer Product Safety Authority] inspectors. By October 2008, only 62 percent of bars, nightclubs and activity centres the VWA inspected were in compliance, dropping to 53 percent by November."[10]

Stakeholder engagement

The push for extending tobacco restrictions to the hospitality sector was led mainly by NGOs, which met with the government and tobacco companies. However, the local businesses who would be affected (e.g. café owners and customers) were never in accord with the regulation.

The extension of the act to the hospitality sector was mainly the result of collaboration between three major Dutch health NGOs, which lobbied and developed a policy agenda during 2005 and 2006. “In late 2005, the three major Dutch NGOs — Astma Fonds (Asthma), Nederlandse Hartstichting (Heart) andKWF Kankerbestrijding (Cancer) — together with STIVORO (Smoking and Health Foundation for a Smokefree Future, the main tobacco control NGO in the Netherlands), decided to integrate lobbying into their tobacco control activities... In 2006, the health NGOs and STIVORO developed a policy agenda which included ending the Tobacco Act hospitality exemption, raising tobacco taxes, requiring that health insurance plans cover tobacco cessation, and increasing government spending on tobacco control. They expanded their smoke-free coalition to include Partnership Stop Met Roken, Clean Air Nederland (CAN) and other groups. During the November 2006 election campaign, the smoke-free coalition lobbied to include their policy package in the new government's post-election agenda."[11]

There was some inclusion of private companies in the dialogue as well. “Minister Klink met with the three health NGOs, STIVORO and CAN in March 2007 and other stakeholders, including KHN [Koninklijke Horeca Nederland], regarding smoke-free regulations beginning in April. The two Dutch tobacco manufacturers' associations, Stichting Sigarettenindustrie (SSI, cigarettes) and Vereniging Nederlandse Kerftabakindustrie (VNK, rolling tobacco) participated in the stakeholder meetings."[12]

However, the businesses affected by the legislation actively opposed the regulation from the start. “The hospitality industry and its allies opposed smoke-free regulations, arguing they cost jobs. In response, the smoke-free coalition spotlighted venues interested in going smoke-free, and argued that hospitality workers' health needed protection. CAN collected petition signatures supporting smoke-free hospitality, which was presented to members of parliament during a smoke-free breakfast... Hospitality organisations, individual venue owners and the Dutch employers' association complained to parliament and the media that the minister was not working with them and failed to consider KHN's proposal that the laws be phased in from 2008 to 2011."[13]

Political commitment

There was only a partial commitment to this amendment. While the coalition government planned to enforce a smoke-free hospitality sector by the end of its term in office, the then health minister Abraham Klink pushed to implement it within a year. The minister rejected the KHN's "phased-out" proposal from 2008-2011 and pushed for a more immediate rollout of the policy.

The newly established government intended to address the hospitality exemption by the end of its term, which was in fact in 2010. “The coalition government that emerged in February 2007 included smoke-free hospitality by the end of its term on its agenda. However, before the first meeting of the Council of Ministers in January 2007, the new minister of health, Abraham Klink, announced his intention to implement smoke-free hospitality within a year. The next day Klink backpedalled, saying he needed to talk to other stakeholders."[14]

After discussions, the minister announced a prompt implementation of the tobacco amendment, pending negotiations on the specifics of its implementation. “On 8 June 2007, Minister Klink sent a letter to parliament outlining why the hospitality exemption would end on 1 July 2008 (smoking rooms were allowed). He rejected KHN's phase-in proposal; all hospitality venues would be subject to the same regulation... Parliament engaged in a long discussion in September 2007 and asked interested parties to submit written comments, then asked the minister to respond about ventilation as an alternative to going smoke-free, requests for exemptions, alleged economic loss and requests for government compensation to hospitality venues for the expected loss. The minister held firm regarding implementation, while throughout late 2007, hospitality representatives dragged out implementation talks."[15]

Public confidence

A majority of both smokers and non-smokers supported an expansion of anti-smoking policies, including to the hospitality sector. However, there were strong media campaigns against the ban, which significantly influenced public opinion.

Research by the TNS NIPO survey agency (commissioned by the VWA) indicated, that although the proportion of non-smokers against public smoking had decreased, there was still strong support from both active and non-smokers for more regulation of the activity.  “In 2008, TNS NIPO looked at the public support for smoking bans in the hospitality industry. They found that a majority of the industry's customers supported such a ban (62 percent, a little less than in 2006 when 65 percent of the population supported it). The majority of those against were smokers (72 percent). More than half of those questioned wanted a smoking ban in the near future. With respect to restaurants this was 60 percent. A vast majority of the supporters of a smoking ban took the position that the government should be more decisive and force the hospitality industry to be smoke-free... On average, 84 percent of Dutch people (smokers 72 percent, non-smokers 89 percent) took the position that employees should have the opportunity to do their jobs without being disturbed by tobacco smoke."[16]

There was organised opposition from smokers' rights pressure groups. “In April 2008, the chairman of Forces Nederland and a lobbyist for Stichting Rokersbelangen (SRB) (smokers' rights groups) helped found ‘Save the Small Cafe Owners' (KHO) as part of a network of smokers' rights activities to fight smoke-free regulations."[17]

Similarly, the media discussion was mostly framed against the ban, with poor management from the government. “The Ministry's poorly designed media campaign generated sympathy for smokers and the cigarette instead of promoting the health benefits of the new regulations for workers and the non-smoking public; combined with the exemptions clause in the Tobacco Act, it provided a foundation from which opponents used small bars as a wedge to undermine smoke-free hospitality venues, encourage noncompliance among all bars and re-exempt owner-run bars.”[18]

Clarity of objectives

The purpose of the hospitality extension of the tobacco ban was to safeguard the health of workers in the sector. The government's website explains: “Smoking is prohibited in hotels, cafés, bars, restaurants and catering establishments because employees have the right to work in a smoke-free environment.”[19]

The objective was used by opponents of the regulation to try to exclude small businesses with few employees, arguing that: “‘the smoking ban was introduced because Europe wants to protect workers against smoke. But you do not have to protect bar owners if they have no staff,' MP Halbe Zijlstra said”.[20]

Strength of evidence

When this regulation came into effect in the Netherlands, similar bans had already been implemented across Europe and the rest of the world.[21]  There was therefore already awareness at the time of successful smoking bans in other countries, but later studies suggested that it was the difference in implementation in the Netherlands made the Dutch legislation less successful, indicating that the government had failed to take proper account of the evidence.

Findings from an International Tobacco Control (ITC) France study in 2013 reported that: “Previous ITC comparative evaluation of comprehensive versus partial workplace smoke-free legislation in Ireland, England, and the Netherlands provides evidence that comprehensive smoke-free legislation as implemented in Ireland and England had positive effects on increasing quit attempts and increasing quit success respectively, while partial smoke-free legislation in the Netherlands was not shown to have an impact on quit attempts or quit success."[22]

Feasibility

One initial problem was that the original exemption clause in the Tobacco Act provided a loophole that opponents could exploit to use small bars as an exception to undermine smoke-free hospitality venues, encourage noncompliance among all bars, and re-exempt owner-run bars.[23]

Similarly, the media campaign accompanying the ban was unsuccessful. “To support the smoke-free regulations, the National Tobacco Control Plan (NTCP, a joint venture between the Ministry of Health and Cancer, Asthma and Heart) planned an intensive, well-publicised quit campaign timed to run in early 2008 before the regulations took effect. In addition, the NTCP and STIVORO successfully lobbied for a tobacco tax increase in 2008. The minister announced a period of adjustment where venues would be warned but not fined, without setting an end date for this period.”[24]

The lack of clear timelines and enforcement allowed opponents to challenge the new law. “Countering opposition to smoke-free laws has been done elsewhere with well-planned implementation campaigns that used the media to target non-smokers to reinforce public support, and by active enforcement of the law after a specified introductory period. The Ministry and four NGOs' focus on smokers and a smoking cessation campaign allowed KHO to control public perception. The initial lack of a specific date on which vigorous enforcement of the law would begin allowed KHO and other bar groups several months to build momentum to defy and challenge the law."[25]

There was also a significant difficulty in enforcement, related to the smoking of cannabis in coffee shops; customers were free to light up potent tobacco-free pure cannabis joints but banned from smoking 'milder' tobacco mixed with cannabis, which threatened to put hundreds of coffee shops out of business. An owner of a coffee shop said in an interview "It's a bit like saying to someone you can go into a cafe and you can buy a beer, but you can't drink it there - you'll have to stick to whisky, rum and vodka". Most clients preferred joints in which cannabis is mixed with tobacco, and only 18% favour much stronger, pure cannabis spliffs. [26]

Management

Government authorities and agencies - primarily the Ministry of Health and the VWA - took proper steps to manage the implementation, and the VWA was responsible for issuing fines to those who did not comply. However, there were significant weaknesses in the management of the media strategy and attempts to influence public perception of the ban.

The principles by which the regulation was managed were deemed appropriate and in line with global standards. “Many of the minister of health's decisions regarding implementing and enforcing smoke-free venues were consistent with WHO best practices, including treating all hospitality venues the same, including both civil society and the hospitality industry in implementation discussions, and promoting smoking cessation together with smoke-free laws. The Ministry educated business owners and building managers regarding compliance, eventually aggressively enforced the law, and arranged for independent compliance monitoring.”[27]

However, analysts point out that the communications strategy behind the implementation was not well managed. “Neither civil society nor the Ministry anticipated heavy opposition, including the use of third parties by smokers' rights groups. Minister Klink included the tobacco industry as a stakeholder in the policymaking process. The Ministry's failure to use appropriate and continuous messages promoting the law's health benefits was a key determinant of the outcome because it allowed opponents to control public perception and promote small bars as the victims of the law.”[28]

Similarly, the lenient application of fines at the start led to widespread noncompliance, which the VWA only addressed later on. “Due to well-publicised, repeated violations, Minister Klink announced that, starting on 1 October 2008, the government would impose administrative fines on venues that repeatedly violated the regulations. The VWA began issuing fines, and in mid-November, the minister announced that bars who repeatedly violated regulations would additionally face criminal prosecution, and closure."[29]

Measurement

There is evidence that various governmental and non-governmental bodies monitored compliance with the regulations. However, there is no evidence of an established methodology to track the progress of the policy's objectives.

In the first year of implementation, an EU-wide survey revealed the problems with the adoption of the tobacco ban, which prompted a survey by the VWA. “In December 2008, a European Commission survey of tobacco control attitudes in EU countries showed that in the Netherlands, 52 percent opposed regulations. To study the extent of noncompliance, the VWA commissioned an anonymous quarterly compliance survey. From late 2008 to early 2009 almost a quarter of the bars and nightclubs were noncompliant, compared to only 5 to 10 percent in other hospitality areas."[30]

Inspections continued with a special focus on noncompliant businesses. “Between 1 July 2008 and the beginning of January 2009, the VWA carried out more than 14,000 inspections. From October these inspections were especially concentrated on those businesses which did not comply with the bans. The results of these activities were that some 2,500 measures were imposed, 80 percent of them on bars."[31]

Similar surveys were also completed by external institutions. “The research institute Intraval inquired into compliance in six cities. From this research, it is evident that 90 percent of all 42,500 businesses in the hospitality industry comply with the bans. A large majority of the ‘wet part' also complies - 77 percent. About 2,500 of the 11,000 bars, pubs and similar do not comply with the smoking ban. This number has not changed much since the first three months of the smoking bans."[32]

Alignment

Many business owners opposed the regulation and became increasingly noncompliant, blaming the ban for loss of business. “Bar owners argued that their turnover had decreased to such an extent that they had no other choice than to put the ashtrays back on the tables. They did not agree with the distortion of competition argument and became more resolute in their protest against the smoking ban."[33]

Media coverage against the ban increased after 2008, blaming the regulation for economic challenges facing business owners. “Most newspaper coverage was found to be negative towards the smoking ban (57 percent) and focused on economic aspects (59 percent) rather than health aspects (22 percent).”[34]

The media also accused the ban of limiting individual freedoms. “Newspaper coverage increased in July 2008 and again in Autumn 2008, focusing on economic issues rather than health gains. Echoing tobacco industry messaging, opponents accused the government of violating individual freedom, and called Minister Klink a ‘nanny'... Societal organisations such as the Labour Foundation and the KHN are also convinced of the advantages of self-regulation - they took the position that it is better not to apply the most severe measure, a legal ban, immediately. They considered regulation by government as too rigid and therefore hardly effective, and thought that social support for smoking bans was more easily gained through self-regulation."[35]

In addition, the government and the NGOs supporting the ban failed to work together effectively to counter negative claims. “The Ministry blocked the health NGOs from running alternative ads, arguing that notifying the public was the Ministry's responsibility.”[36] The Ministry did launch a media campaign, but it was poorly designed, and generated sympathy for smokers instead of promoting the health benefits of the new regulations for workers and the non-smoking public.

Finally, debates in 2009 regarding the request to except owner-run bars from the legislation exposed further disagreements. “In July 2009, the minister directed the VWA to suspend enforcement in bars without employees, pending the Supreme Court's ruling. Pressure from parliament forced the minister to reopen the possibility of using ventilation. The major health NGOs and STIVORO opposed this decision and attempted to get media coverage of the fact that ventilation would not protect hospitality employees and customers from the health dangers of [second-hand smoke]. Compliance among bars and nightclubs continued to decline.”[37]

Bibliography

Dutch smoking ban goes into force, 1 July 2008, BBC News

Dutch smoking ban: No tobacco in your joints, cafes ordered,  Kate Connolly, 01 July 2008, The Guardian

Evaluating the Effectiveness of France's Indoor Smoke-Free Law 1 Year and 5 Years after Implementation: Findings from the ITC France Survey, G.T. Fong, L.V. Craig, R. Guignard, G.E. Nagelhout, M.K. Tait, P. Driezen et al, 21 June 2013, PLOS ONE

Failure of policy regarding smoke-free bars in the Netherlands, Mariaelena Gonzalez and Stanton A. Glantz, 5 December 2011, The European Journal of Public Health

ITC Netherlands National Report, June 2010, The International Tobacco Control Policy Evaluation Project

Liberal MPs act to scrap smoking ban in small bars, 28 June 2010, DutchNews.nl

Netherlands Country Factsheet, The Tobacco Atlas

Restrictions on smoking, HollandTour.org

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Smoking Bans in the Netherlands: A Mix of Self-Regulation and Regulation by Government, Heleen Weyers, University of Groningen

The influence of newspaper coverage and a media campaign on smokers' support for smoke-free bars and restaurants and on second-hand smoke harm awareness. Findings from the International Tobacco Control (ITC) Netherlands Survey, Gera E. Nagelhout, Bas van den Putte, Hein de Vries, et al, 17 May 2011, US National Library of Medicine - National Institutes of Health

Tobacco control legislation in the Netherlands, Prof. dr. Brigit Toebes, 5 April 2017, University of Groningen