Smoking Ban Legislation in Public
Places in China----Development and
Improvement
Prof. Chen-guang Wang, Ph.D. Yan Cheng
School of Law, Tsinghua University
A) General introduction on smoking ban
legislation and its evaluation before FCTC
(a) National Smoking Ban Norms in public places
1. smoking ban norms was developed from the central to the local during
this period, the Ministry of Health (MOH), the National Patriotic
Health Champagne Committee has developed a series of
regulations and norms to promote the local’s efficient carrying out
● 1979, approved by the State Council , the MOH and other ministry
decorated the Notice on smoking harm and tobacco control initiate
● 1981, National Education Committee set clear in the Students’
Regulations: No smoking
● 1985, the National Patriotic Health Champagne Committee together
with the Ministry of Railways set regulations Ban on spitting, littering
and smoking in smoke-free compartments on train
● 1987, the National Patriotic Health Champagne Committee together
with the MOH and other ministries decorated Notice on no smoking
initiate in places for children play
● 1987, the State Council promulgated the "public places, health
regulations" to prohibit smoking in public places
● 1991, the Ministry of Health issued "Rules for the Implementation of
Public Health regulations," provides in theaters, video halls, concert
halls, dance halls, music cafes, recreation room, gymnasium,
libraries, museums, art galleries, museums, shopping malls,
bookstores, public transport waiting rooms and other 13 categories
of smoking bans in public places;
● 1991, the Patriotic Health Campaign Committee, the Ministry of
Health and other eleven ministries jointly issued "in public places
and public transport to carry out in depth the activities of nonsmoking notice";
● 1991, the "China Tobacco Monopoly Law" states: "State and
community to strengthen publicity and education on health hazards
of smoking, prohibited or restricted in public transport and smoking
in public places.“
● 1991 years " the PRC Law on the Protection of Children" twentyseventh article: No person shall smoke in schools, kindergartens,
nursery teachers’, bedroom, and other health-focused activities
rooms.
● 1997, the National Patriotic Health Campaign Committee, Ministry of
Health issued "on public transport and its ban on smoking in the
waiting room", putting forward stricter requirements on it.
2 Characteristics and shortcomings of the national
legislation during this period:
(1) a lower level law, mainly administrative
regulations, government regulations, rather
than the NPC law.
(2) there is no specific national tobacco
control laws regulate smoking in public places
rather than scattered in other laws and
regulations, lack of a systematic system of
norms and the corresponding penalties.
(3) notice, the main provisions of advocacy,
lack of legal stability and authority.
(B) local legislation
China's large-scale public smoking ban
legislation set up from the 1990s until the end of
2005, China Wuhan, Shaoguan, Nantong,
Wenzhou, Jinan, Fushun, Hengshui, Weifang,
Zhengzhou, Xining, Guiyang, Chongqing,
Hohhot, Yinchuan, Urumqi, Dalian, Shanghai,
Beijing, Nanchang, Qingdao and many other
regions have promulgated specific smoking
rules in public places within local specification
file. During this period local legislation has the
following characteristics:
1. The force of law in this period mainly
regulate smoking in public places all over the
local government regulations, only a handful of
cities as local laws and regulations, such as
Qingdao, Zibo, Urumqi, Shijiazhuang,
Zhengzhou, Tianjin. Legal effect is relatively low.
2. Standardize the structure, during this time over smoking
in public places is similar to the structure of norms, have
largely adopted the legislative purpose, definition of nonsmoking places, social advocacy, self-management,
passive smokers rights, smoking places on the unit
where the punishment impede job processing, review
and litigation, the requirements for health managers,
non-smoking places on the individual smoking
punishment system of norms. In the specific technical
aspects of legislation, the definition of smoking area
adopts listing mode, the majority of areas in order to
compensate for list-style may lead to the extension of
undistributed taken a fallback style requirements, listed
in the last paragraph, "state laws and regulations No
Smoking in other public places, “ " according to actual
needs, determined by the municipal government banned
smoking in other places ", etc., for the expansion of
public places possibilities.
3 entity content:
(1) smoking places limited mainly to the limited indoor
places, workplaces and hotels, restaurants and other
public places are not included in the scope of outdoor
public places, smoking ban is not clear.
(2) generally set smoking area
(3) the implementation of the main provisions are not
uniformed, single executive body does the work lacking
of maneuverability. During this period the there are two
categories carry out main provisions of law enforcement :
Shanghai, Nanchang and so are managed by the
provincial health bureau, penalty carried out by the local
health bureau; Nanjing, Dalian and other places
managedd by the provincial Patriotic Health Campaign
Committee, while the Office of the competent authority,
city, district, county Patriotic Sanitation is the executing
agency for punishment.
4 clear focus on penalties object, clear legal
position, but the legal representation is not
accurate, not so conducive to public’s
understanding and acceptance.
Smoking in public places throughout the
legislative intention is to control secondhand
smoking damages the health of others, regulate
smoking places emphasis on the specification and
the performance of duties on non-smoking places,
but are unified throughout the expression
"smoking in public places," and used till now .
Order-driven legal defination and the way of
expressd is not conducive to an accurate grasp of
the community spirit of the law and the core, are
prone to psychological and emotional conflict
Appendix: Convention on smoking in public places before
the main legal directories
1. Wuhan ban on smoking in public places (2005
Amendment) (2005.11.09)
2. Shaoguan City, the ban on smoking in public places
(2005.09.09)
3. Nantong ban on smoking in public places (2004.07.20
Amendment) (1998.08.12)
4. Wenzhou ban on smoking in public places
(2004.01.17)
5. Jinan ban smoking in public places (2001 modified)
(2001.06.15)
6. Fushun Provisional Regulations on smoking bans in
public places (1999.05.25)
7. Hengshui city smoking bans in public places
management practices (1998.08.30)
8. Weifang smoking regulations in public places
(1998.08.27)
9. Zhengzhou smoking regulations in public places
(1998.07.24)
10. Xining City, the ban on smoking in public places
(1998.07.24)
11. Guiyang Provisional Regulations of smoking bans in
public places (1998.06.17)
12. Chongqing ban smoking in public places [fail]
(1998.06.01)
13. Hohhot ban smoking in public places (2009
Amendment) (1998.05.22)
14. Yinchuan Provisional Regulations on smoking bans
in public places (1998.03.18)
15. Urumqi ban on smoking in public places (1998.01.06)
16. Dalian Provisional Regulations on smoking bans in
public places (1997.12.31 Amendment) (1995.08.30)
17. Shanghai Provisional Regulations on smoking bans
in public places (1997.12.19 Amendment) (1994.09.19)
18. Nanchang Provisional Regulations on smoking bans
in public places (1997 amendments)
19. Qingdao city ban on smoking in public places (1997
modified) (1995.12.14)
20. Anshan City smoking ban smoking in public places Provisional
Regulations (1997.7.23)
21. Smoking bans in public places Suzhou management practices
(1997.04.12)
22. Benxi City, the ban on smoking in public places (1997.04.11)
23. Shijiazhuang city banned smoking in public places (1997.01.22)
24. Harbin ban on smoking in public places (1996.12.28)
25. Chengdu ban on smoking in public places (1996.10.14)
26. Xiamen ban on smoking in public places (1996.09.24)
27. Changchun Provisional Regulations of smoking bans in public
places (1996.08.09)
28. Tianjin smoking regulations in public places (1996.07.10)
29. Shantou SEZ city smoking bans in public places Provisional
Regulations on the implementation details (1996.06.11)
30. Jilin city ban on smoking in public places (1996.04.23)
31. Ningbo Provisional Regulations on smoking bans in public places
[fail] (1996.04.18)
• 32. Lanzhou implementation methods of smoking bans in public
places (1996.03.01)
33. Huainan Interim Provisions of smoking bans in public places
[fail] (1996.01.29)
34. Beijing banned smoking in public places (1995.12.21)
35. Hefei ban on smoking in public places (1995.12.15)
36. Haikou City, on the prohibition of smoking in public places of the
Interim Provisions (1995.10.05)
37. Nanning Provisional Regulations on smoking bans in public
places (1995.09.22)
38. Nanjing Provisional Regulations on smoking bans in public
places (1995.09.20)
39. Guangzhou on the prohibition of smoking in public places notice
(1995.08.09)
40. Chongqing Municipal People's Government ban on smoking in
public places, the notice [fail] (1995.08.04)
41. Shenyang Provisional Regulations on smoking bans in public
places (1995.07.24)
42. Zibo ban smoking in public places (1995.06.14)
43. Suzhou "ban on smoking in indoor public places, several
provisions" (amended in 1997) (1993.12.30)
B) General introduction on smoking ban
legislation and its evaluation after FCTC
Legislation of this period showing a bottom-up features:
local legislation for the first, the department standard as
assistance, to jointly promote the of national legislation.
1 local legislation: Typically, in 2008 the Beijing
Municipal Government issued the "Beijing banned
smoking in public places the scope of certain provisions"
will be extended to public places, workplaces, and
restaunts. In 2010 "second-hand tobacco smoke
Nanchang Control Ordinance (draft)" first use "secondhand tobacco" expression. In 2011, "Harbin to prevent
second-hand tobacco smoke regulations" of China is the
first local law and regulation in line with the requirements
of the UN Framework Convention on Tobacco Control.
• (2) national legislation: the Ministry of Health,
Ministry of Education issued the relevant
regulatory documents. In 2009 "decision to ban
smoking included in the 2011 national health
system ",in 2010 "Ministry of Education, Ministry
of Health issued “advice on the strengthening of
school tobacco control efforts," respectively, and
university health systems of these two major
public places in the smoke standard control
vertical advance, echo the local legislation. This
May 1, 2011 "public places, Health
Implementation Rules,“ took effect, Article 18
clearly states indoor smoking bans in public
places.
• Appendix 2:2006 smoking in public places since the
main legal directories:
1. Public places, Health Implementation Rules (2011.5.1)
2. Ministry of Education, Ministry of Health advice on the
strengthening of school tobacco control efforts
(2010.6.12)
3. About 2011 the national health system decision to ban
smoking (2009.5.20)
4. Guangzhou Smoking Control Ordinance (2010.9.1)
5. Lhasa Patriotic Health Regulations implementation
measures (2009.11.05)
6. Anshan City, the Interim Provisions of smoking bans
in public places (1997.07.23)
7. Shenyang Provisional Regulations on smoking bans in
public places (1995.07.24)
8. Luzhou Municipal People's Government on Further
Strengthening the views of health education
(2010.03.12)
• 9 control smoking regulations in public places in Shanghai (2009.
12.10)
10. Wuhu Municipal People's Government on Further Strengthening
the health work of the patriotic views (2009.11.19)
11. Jingzhou Provisional Regulations on smoking bans in public
places (2009.10.09)
12. Hohhot ban on smoking in public places (2008 Amendment)
(2008.11.19)
13. Maanshan smoking regulations in public places (2008.10.18)
14. Huaihua ban on smoking in public places (2008.06.24)
15. Yichang City ban on smoking in public places (2008.06.14)
16. Qingdao Municipal People's Government on Further
Strengthening the Work of smoking bans in public places notice
(2008.05.29)
17. Luohe ban on smoking in public places (2008.05.28)
18. Shenyang notice smoking bans in public places
(2008.05.14)
19. Meizhou implementation of smoking bans in public
places (2008.04.09)
20. Yichang City ban on smoking in public places
(2008.04.01)
21. Beijing banned smoking in public places certain
requirements range (2008.03.31)
22. Dalian Provisional Regulations on smoking bans in
public places (2008 Amendment) (2008.03.31)
23. Hanzhong ban smoking in public places (2007.12.17)
24. Daqing ban smoking in public places (2007.10.31)
25. Shaoyang ban smoking in public places (2007.05.26)
26. Tongchuan Provisional Regulations of smoking bans
in public places (2006.12.28)
27. Xianning Xianning City People's Government on
smoking bans in public places Interim Provisions
(2006.04.30)
C) Progress &shortcomings of the national
legislation after the implementation of the FCTC
(A)
the progress of smoking ban covered areas
1 has been expanding the range of public places.
(1) some of the outdoor spaces into public places range.
There are two different methods of provision.
The first is: "control smoking in public places in Shanghai
regulations" non-smoking places in the range, including
nurseries, kindergartens, schools and Children's Palace, the
indoor and outdoor youth activity center area; MCH (the),
Children's Hospital, children's Welfare Institute of indoor and
outdoor areas.
The second: Beijing, Yinchuan and other places only a
few institutions express provision for indoor smoking, other
smoking places not distinguish between indoor and outdoor
areas.
(2) specific non-smoking places more detailed list . Such as
increasing the cafe, elevator and waiting area, the state
authorities provided public services, work places, public utilities,
financial institutions and other business premises.
(3) further extension of the indoor public places and
improvement of circumspect, indoor public places, smoking
is clearly written "public places, Health Management
Implementation Rules", in the workplace are gradually
incorporated into the scope of public places,
(2) smoking and smoke-free zoning problems are
gradually improving.
"Harbin regulations to prevent second-hand tobacco
smoke," a change in the traditional division of smoking and
smoking areas of practice, while taking a progressive path,
provides: Bill comes into force, Harbin hotels, dining room
place in a certain period within the designated smoking
floors, rooms, after the expiration of non-smoking. Specific
duration and scope, determined by the Harbin municipal
government.
3, law enforcement agencies to improve the setting, to
further clarify the division of responsibilities.
Around the new formulation and revision of laws and
regulations, and staffing in the implementation of the
system has become more refined. A Case of Shanghai,
"Shanghai Provisional Regulations on smoking bans in
public places," 1997 edition of the implementing
agencies provided only a simple as: "the prohibition of
smoking in violation of the places where the unit, district
or county Health Department at the following shall be
punished ... "; and the new" control of smoking
regulations in public places in Shanghai, "is more
detailed and informative on the different areas of
supervision and law enforcement to take the division of
labor model.
4. Punishment has enhanced, more operational,
but also conducive to the realization of legal
deterrence.
The modified units and individuals around the
penalties were all improved. Penalties for
violations of the no-smoking places from the
initial range of 500-5000 yuan, up ten thousand
dollars for the 2000-3; the individual smoker's
punishment from the initial $ 10, adjusted to 50200 per month.
5. Legal effect level has improved, more
authoritative.
Before 2006, the majority of our local
legislation of local government regulations, lower
level. In this round of changes, Shanghai,
Yinchuan, Guangzhou, regulate smoking in
public places were up for the effect of higher
local laws and regulations.
（B）major shortcomings
1 the range of public places is still a gap with the requirements of the
Convention.
(1) the lack of "public places" and general definition, still in use liststyle approach is not conducive to "public places" extension of the
comprehensive.
(2) outdoor smoking in public places yet to be fully realized. From
all over the legislative point of view, although in different places
around the outdoor smoking or have different standards, but overall,
indoor and outdoor smoking area is included in the scope of the
need for specialized, explicit nature of the regulations, an outdoor
public place Smoking not fully realized.
(3) setting apart smoking and non smoking areas are still common
practice. Followed around the smoking legislation places more
restrictions on smoking places with distinction, the catering,
entertainment and other places designated as smoking rooms can
be set (area) place restrictions on smoking. The concept of
misleading the public, as they can not recognize the so-called
passive smoke, no "safe exposure" level.
2. Lack of unified national laws regulate
smoking in public places to local laws and
regulations and local government
regulations based legal system, resulting in
a series of questions.
(1) The legal effect of low level lead to
restricted types of administrative penalties.
(2) differences in local law is not conducive
to the formation of a unified concept of
smoking in public places and practices
3. Name of legal norms can not accurately
express the legislative intent.
Modifications of some local laws and
regulations "No Smoking" to "tobacco
control", although such statements can be
eased to some extent due to the general
public to express the original legislative
intent of the misunderstanding, still with
the Convention to promote the "secondhand tobacco smoke control ", "law to
prevent exposure to tobacco smoke," the
expression of a considerable gap
• 4. Government health administration
authorities, non-smoking places, smokers
and passive victims of rights and obligations
related to the definition be further clarified.
Smoking status and responsibilities of the
designed site should be legislation to reexamine and solve problems. What is law
enforcement smoking places the object is
the subject of law enforcement, or "law
enforcement facilitator"? Different roles in
different settings will correspond to the
responsibilities and authority, and its
violation of obligations or duties of the legal
consequences of the very different nature.
Operational level, in the first-line anti-smoking non-smoking
places lack the power of administrative punishment in
the case, how to protect the immediacy of punishment?
Related to lack the immediacy of the post-law
enforcement can do bell? Smoking place concrete
manifestation of violation of duties which include, in
particular, is not to discourage smokers, the extent to
which such acts should be punished? How to protect
non-smoking places obligations on the immediate
supervision of the situation? These operational issues
were not involved in legislation, regulations and legal
consequences of the generalized system of nonconvergence of law enforcement will inevitably lead to
the penalties for not effectively implemented
（C）suggestions
• 1. According to the spirit and requirements of the Convention, to
further clarify the meaning and extension of public places.
First, a clear definition of public places, using the general style and
the modalities of the list-style co-exist.
Second, indoor workplaces have not yet fully incorporated into
smoking areas around the key areas to promote.
Third, the outdoor smoking ban in public places should be further
clarified, specific.
Fourth, the abolition of distinction between workplace smoking
restrictions on smoking places and practices, the progressive
realization of a total smoking ban in public places. A high
concentration of people dining, and entertainment venues to
establish a comprehensive smoking ban norms, a real sense of the
standardization of tobacco control in public places.
2. Promote a national unified legislation for the implementation
of local anti-smoking legislation and to provide more specific
references and more authoritative legal basis.
3. scientific and unified naming of Tobacco control laws and
regulations
4. Clear distinction between government health administration
authorities, non-smoking places, smokers and the tobacco
control law in the relationship of passive smoking victims
have specific rights in the burden of specific obligations, the
implementation of specific powers to take specific
responsibilities, and these terms, responsibilities, rights and
obligations between the specific association, protection of
the law enforcement system to establish reasonable
arrangements at the top set.