HOSPITALITY ASSOCIATION OF NEW ZEALAND
SUBMISSION
on the
SMOKE-FREE ENVIRONMENTS
(ENHANCED PROTECTION) AMENDMENT BILL
and
SUPPLEMENTARY ORDER PAPER no. 148
23 November 2001
Hospitality Association of New Zealand
L8, Education House, West Block, 178 Willis Street
PO Box 503, Wellington
Phone : 04 385 1369
Fax : 04 384 8044
www.hanz.org.nz
HOSPITALITY ASSOCIATION OF NEW ZEALAND
SUBMISSION
on the
SMOKE-FREE ENVIRONMENTS
(ENHANCED PROTECTION) AMENDMENT BILL
and
SUPPLEMENTARY ORDER PAPER no. 148
CONTENTS :
Page no:
PART 1 : EXECUTIVE SUMMARY
4
PART 2 : ABOUT THE ASSOCIATION
6
PART 3 : THE ISSUE OF SECOND-HAND SMOKE
AND THE HOSPITALITY INDUSTRY
3.1 Current Trends
3.2 Clubs
3.3 The Science of Ventilation
3.4 The Science of Environmental Tobacco Smoke
3.5 Economic Bans
3.6 Tourism Implications
7
7
8
9
10
11
16
PART 4 : SPECIFIC COMMENTS ON SOP NO. 148
4.1 Common Air Space
4.2 Smoking in Existing Bars, Restaurants
and Casinos until 1 January 2007 (Section 12 & 13)
4.3 Smoking in Existing Bars, Restaurants
and Casinos after 1 January 2007
(proposed new section 12a 13aa 13ab & 13b)
4.4 Enforcement (Clause 14 refers)
4.5 Penalties and Offences (Section 7 refers)
4.6 Vending Machines (Part 2, Section 8 refers)
18
18
PART 5 :
5.2
5.3
5.4
5.5
5.6
5.7
5.8
5.9
5.10
5.11
25
25
25
25
26
26
27
27
27
27
28
INDUSTRY VIEWS AND DATA
Profile of Current Smoke-free Policies
Attitude to Proposed Restrictions to Apply from 1 January 2007
Cost of Proposal
Impact on Business
Support for Voluntary Code/Minimum Air Quality Standard
Current use of Ventilation/Filtration Equipment
Staff Concerns
Patron Concerns
Respondents’ Comments
Conclusion
HANZ Submission
19
19
20
21
22
Page 2
Page no:
PART 6 : WORLD WIDE COMPARISON
6.4.1 Countries with More Liberal Smoking Legislation
as it Applies to Hospitality Venues
6.4.2 Countries with Similar Smoking Legislation
as it Applies to Hospitality Venues
6.4.3 Countries with More Restricted Smoking Legislation
as it Applies to Hospitality Venues
29
PART 7 : FREEDOM OF CHOICE
7.1 Choice
7.2 New Zealand Bill of Rights Act
32
32
33
PART 8 : CONCLUSION
34
30
31
31
APPENDICES :
1.
“A Breath of Fresh Air”, Hospitality Association of NZ, 1999.
2.
“Cherry-picked Science on Secondhand Smoke” by
Martha Perske, JunkScience.com, 19 February 2001.
A01-A04
“Warning: Secondhand Smoke May Not Kill You”,
Brill’s Content, December 1998/January 1999.
A05-A10
A Review of “The Effect of Ordinances Requiring Smoke-Free
Restaurants on Restaurant Sales” by Stanton A Glantz and Lisa
RA Smith, by Michael K Evans, The Evans Group, March 1997.
A11-A28
“The Impact of California’s Smoking Ban on Bars, Taverns and
Night Clubs - A Survey of Owners and Managers”, for The
American Beverage Institute, by Peak Marwick, August 1998.
A29-A45
“Where There’s Smoke – Why passive smoking has become the
new public health battlefield”, by Mark Revington, NZ Listener,
28 July 2001.
A46-A47
3.
4.
5.
6.
7.
“Hospitality Association of New Zealand – Smoking Survey
– Member Comments”, October/November 2001
HANZ Submission
A48-A54
Page 3
PART 1 :
1.1
EXECUTIVE SUMMARY
The industry currently provides greater smoke-free areas than required by the
legislation and is increasingly doing so.
1.2
Significant improvement has been made to the atmosphere of licensed
premises. It is estimated that 79% of premises have ventilation/filtration
equipment installed of which 43% was either installed or upgraded in the past
five years.
1.3
Prohibition will have significant adverse economic impact or be ignored, as
evidenced by the Californian experiences.
1.4
Research data from the anti-smoking advocates is selective.
1.5
The proposal has a negative tourism implication.
1.6
Any smoking legislation must apply equally to all hospitality venues including
clubs.
1.7
The ‘common air space’ definition captures hotel bedrooms with shared
ventilation.
1.8
The provision requiring a separate room for smokers should be removed in
favour of a minimum air quality standard.
1.9
The creation of a ‘smoke police’ is inappropriate.
1.10
The offence should apply to the smoker, not the premise.
1.11
The existing laws with respect to vending machines are perfectly adequate.
1.12
Aspects of the legislation breach the New Zealand Bill of Rights Act.
HANZ Submission
Page 4
1.13
97% of Hospitality Association Members oppose the legislation.
1.14
Cost of compliance is estimated to be as much as $277 million.
1.15
A 30% drop in business would cost an estimated $78 million per annum.
1.16
New Zealand is more restricted in its current legislation than 103 other
countries.
HANZ Submission
Page 5
PART 2 :
2.1
ABOUT THE ASSOCIATION
The Hospitality Association is a voluntary trade association representing
approximately 1,700 Members in the hospitality industry ranging from café
bars through to taverns, country hotels and including large accommodation
hotels. The Association was formed in 1902 and has an outstanding record of
service and advocacy for, and on behalf of, its Members since that time.
2.2
The Association is recognised as speaking on behalf of the wider hospitality
industry outside its membership. Across the accommodation services, and
food and beverage services, $2,612 million was spent in the year 2000.
2.3
The industry is typically owner-operated with the exception of the
accommodation sector where there is significant foreign investment.
2.4
Bars and restaurants are not as has been publicly asserted by Phillida Bunkle
owned by ‘breweries with deep pockets’. Breweries have had virtually no
ownership of bars for almost a decade.
HANZ Submission
Page 6
PART 3 :
3.1
THE ISSUE OF SECOND-HAND SMOKE AND THE
HOSPITALITY INDUSTRY
Current Trends
3.1.1 The smoke-free legislation introduced in 1990 requires restaurants to be 50%
smoke-free and provides bars with the opportunity to be 100% smoking. This
established the minimum regulatory requirement for the industry. Since then
and in tandem with the requirements of the customers, the industry has
progressed to enhance the environments for their patrons and their employees
through two principle mechanisms.
3.1.2 Firstly, a significant number of restaurants now have well in excess of 50% of
their restaurant area smoke-free and indeed a number have, of their own
accord, gone completely smoke-free. Also increasingly bars where there are
no requirements to have smoke-free areas, have put aside a portion of their
space as smoke-free areas. A small number of bars have also gone entirely
smoke-free. This is occurring in line with patron demand.
3.1.3 Secondly, considerable work has been undertaken to minimise the impact of
second-hand smoke through improved ventilation and filtration. The
Hospitality Association conducted its first seminar on the issue in 1996 and
produced its first booklet for the industry on how to structure ventilation
effectively. This was followed by further booklets in 1997 and 1999 by
profiling the benefits in seven test sites. The operators in these trial sites all
talked about the positive comments from staff and patrons to the improved air
quality. A copy of the latest of these is attached as Appendix 1.
3.1.4 The industry has advanced a long way from the days when all public bars were
enveloped in a blue smoke haze. Today’s hospitality industry is a dynamic
modern customer-focussed industry constantly changing and adapting to meet
the needs of its patrons.
3.1.5 While no doubt the occasional very smoky bar can still be located, the
prevalence of second-hand smoke within the hospitality industry has
dramatically declined over the last decade.
HANZ Submission
Page 7
3.2
Clubs
3.2.1 There remains confusion as to the legislation and the Government’s intentions
with regard to any restrictions being imposed on clubs. The Association
strongly believes that confusion needs to be clarified and the same regime,
whatever it may be, needs to apply to both clubs and commercial hospitality
venues.
3.2.2
Clubs, bars and restaurants, do compete for the same business and should there
be any difference in application of the smoke-free legislation that will cause
significant disruption and unfair competition.
3.2.3 For example, if clubs were to be provided with an exemption, and bars and
restaurants were not, it is expected that those patrons wishing to smoke would
transfer their allegiance and their dollars to the club environment costing jobs
in businesses. It is not only the smokers that would go. Many people relax
and drink in groups – the non-smoking friends would go with them. Clubs,
bars and restaurants are all set up to provide a hospitality service to the
community. The fact that they have a different ownership structure does not
justify separate treatment.
3.2.4 The outcome of different treatment also has the potential for a significant
impact on the funds available to the community from gaming machines.
Those smokers choosing to go to a ‘smoking club’ to play their machines will
collectively shift grant distribution from the wider community to the narrow
community of club members. A 30% shift could cost the wider community
up to $45 million per year, to the benefit of clubs members.
3.2.5
Whatever the final shape of legislation on this matter, it must apply equally to
all those who offer a hospitality product.
HANZ Submission
Page 8
3.3
The Science of Ventilation
3.3.1 The anti-smoking lobby continue to rubbish the industry’s efforts to improve
the atmosphere in licensed premises through better ventilation and filtration.
They argue that only a hurricane force ventilation system can effectively deal
with second-hand smoke. Regrettably the anti-smoking lobby are passionate
in the extreme, and are not prepared to accept any compromise or recognise
the value and contribution that ventilation and filtration actually make. The
level of any health risk associated with second-hand smoke is far from black
and white. Most ventilation and filtration equipment manufacturers claim that
their equipment is in excess of 90% efficient in removing second-hand smoke
as well as other impurities and bacteria in the air. The technology continues
to improve as new techniques and systems are developed.
3.3.2 There are many aspects of New Zealand life which have risks associated with
it. It does not mean those activities are outlawed but instead have controls to
reduce risks which still allow those activities to be undertaken. A good
example of this is the speed limit. If there was no speed limit on the road,
road deaths related to speed would be much higher than they currently are. If
the speed limit was reduced to say 20 kms per hour then road deaths related to
speed could probably be almost eliminated. Instead we have a speed limit set
at 100 km which is recognised by the community as a reasonable compromise
allowing the freedom to move at a reasonable pace while minimising the risk.
3.3.3 Similarly with drinking and driving, it is recognised that there would be no
alcohol-related road deaths if nobody drank and drove. It is recognised that
people can consume up to .08 mls of alcohol with little likelihood of that being
the cause of an accident. Again, there has been compromise, risk is
minimised and choice preserved.
3.3.4
The Association contends that given a minimum of 90% of second-hand
smoke is removed through ventilation and filtration that similarly 90% of any
risk associated with second-hand smoke is removed.
HANZ Submission
Page 9
3.3.5 The Association will in its submission seek amendments to the proposed
legislation utilising ventilation and filtration to minimise risks while
optimising choice, and urges the Select Committee to make reasonable
and pragmatic changes rather than bowing to the ideologues.
3.4
The Science of Environmental Tobacco Smoke
3.4.1 The approach of the anti-smoking lobby to research on environmental tobacco
smoke is well summed up in an article by Martha Perske in JunkScience.com.
Her article ‘Cherry-picked Science on Secondhand Smoke’ is attached as
Appendix 2. Perske chronicles the selective nature of so called authorities in
choosing to highlight only the research which supports their position while
ignoring that which doesn’t.
3.4.2 For example, the anti-smoking lobby continue to give credence to the 1993
Report of the US Environmental Protection Agency. It is widely known that
in 1988 the report was ruled null and void by US District Judge William
Osteen who found that the agency manipulated the data in order to arrive at a
desired and predetermined position. Similarly the 1998 World Health
Organisation (WHO) study, one of the largest ever done on environmental
tobacco smoke and lung cancer risk has been ignored because in the words of
WHO’s own press release (3.9.98) :
“a small increased risk was found for non smokers living and working
with smokers, but neither increased risk was statistically significant.”
3.4.3
Martha Perske sums it up when she says :
“The above examples are not meant to argue the science on environmental
tobacco smoke one way or another, but simply to make known some of the
data that was excluded from the position statement – data, apparently, that was
not helpful in building the case against environmental tobacco smoke.”
“No matter how prestigious-sounding a professional organisation may be, if
there is deliberate omission of facts in order to promote a point of view or
goal, that organisation cannot be seen as a credible source of information for
determining public policy.”
HANZ Submission
Page 10
3.4.4 Dr Geoffrey Kabat, an Associate Professor of Preventative Medicine at the
State University of New York at Stony Brook comments :
Even if you accept the EPA numbers, a male faces 100 times more risk
of cancer if he smokes than he would from passive smoking. That
makes active smoking perilous indeed. But what does that mean for
the cancer risk of secondhand smoke ? According to a 1995
Congressional Research Service study, the odds that a nonsmoker will
die from secondhand-smoking-induced lung cancer are about the same
as those for dying from electrocution or by drowning. Even
nonsmokers who live with smoking spouses are more likely to be
killed in a homicide than they are to die from lung cancer caused by
somebody else’s smoking.
Excerpt from Appendix 3, “Warning : Secondhand Smoke May Not Kill
You”, Brill’s Content December 1998/January 1999.
3.4.5
The Association strongly questions whether the evidence is sufficiently
strong to justify such heavy handed public policy as is included in
Supplementary Order Paper no. 148.
With the application of the Association’s ventilation and filtration
recommendations, what is a statistically insignificant risk is reduced by
the order of 90%.
3.5
Economic Bans
3.5.1 The anti-smoking lobby has consistently argued that banning smoking in
hospitality venues has no adverse economic affect. They point to California
in particular claiming there have been no adverse affects and cite various
economic studies.
3.5.2 These so-called ‘economic studies’ have been strongly refuted by hospitality
industry organisations in those localities. For example, in California the
Licensed Beverage Association lead by President Beverly Swanson strongly
disputes the data. The California Licensed Beverage Association argues that
the results of the research are wrong on two fronts. Firstly, the ‘before and
HANZ Submission
Page 11
after’ comparative base includes product and economic activity outside onpremise hospitality venues. An analysis highlighting the inadequacies and
errors within the research and indeed suggesting the research actually
indicated a negative impact on the Californian hospitality industry as a result
of the smoking bans is attached as Appendix 4 .
3.5.3 In summary :
“This paper shows that the Glantz and Smith conclusions are
unwarranted and are based on faulty assumptions in methodology. In
particular we will show that :
1.
Glantz and Smith misconstrued or misunderstood the smoking
conditions in 14 of the cities cited as having a smoking ban, and
in a majority of the cities chosen for ‘control’ cities.
2.
The methodology used by Glantz and Smith that incorporates
the ratio of restaurant sales taxes to total retail sales taxes is
flawed in several respects.
3.
In almost all cases, aggregated sales tax receipts will give a
misleading underestimate of the decline in restaurant sales
caused by smoking restrictions. Either Glantz and Smith do
not understand this point or they chose to ignore it.
4.
Notwithstanding all the above, an extension of the Glantz and
Smith results shows that in fact the smoking restrictions that
were imposed did, on balance, have a significant negative
impact on restaurant sales. It is our opinion that if the study
had been undertaken properly, the negative impact found would
have been significantly greater.
The term ‘restaurant smoking ban’ has been used loosely by
politicians, the media and academic journals, but it is almost always a
misnomer, whether by error or calculation. Glantz and Smith, for
example, state unequivocally that the 15 test cities they studied had
“100% smoke-free restaurant ordinances,” but in fact, 14 of the 15 did
not. Only one of the 15 cities enacted an ordinance that could be
correctly described as a total ban (San Luis Obispo).
While 14 cities did prohibit or highly restrict smoking in
‘restaurant/dining areas,’ in most cases, free-standing bars and the bar
areas of restaurants and cocktail lounges were allowed to continue
serving smoking customers, as were, in some cases, restaurants with
private function rooms, ‘unenclosed’ areas (patios) and separately
ventilated, enclosed rooms.
The specified definition of ‘bars, bar areas and cocktail lounges’ allows
food service described as ‘incidental,’ meaning, in most cases, ‘not to
exceed 40% of gross revenue.’
HANZ Submission
Page 12
Some loss of smoking customer business undoubtedly occurs under
such circumstances, but the incidence is less than it would be if there
were 100% bans, with full compliance and enforcement, which
prohibited customers from smoking in any commercial dining
establishments.
These distinctions are fundamental for accurate, objective economic
analysis and have been misleadingly applied in the scant and poorly
designed research published to date.”
Each of these points is discussed in the attached Appendix 4.
3.5.4 The second issue related to the economic impact on bans is that the ban on
smoking in restaurants and bars in California is either being ignored, (the
patrons have moved outside to ‘garden bars’ which can be accommodated in
the benevolent Californian climate) or it has had an adverse effect. In many
locations in New Zealand, outside in winter is an inhospitable environment.
3.5.5 A copy of the survey undertaken by the California Licensed Beverage
Association is attached as Appendix 5.
The conclusions of this survey are as follows :
3.5.5.1
A total of 300 alcoholic beverage serving operations were surveyed.
The sample was selected at random from a list of 7,216 beverage
licence holders provided by the Alcohol Beverage Control. The
sample breaks down by property type as follows :
Type of Establishment
Bar connected to restaurant/hotel
Stand-alone bar/tavern
Nightclub
Percentage of Respondents
57.3%
35.7%
7.0%
3.5.5.2
Of the 300 beverage operations surveyed, 3.7% of the establishments
did not actively enforce the ban while an additional 22.6% indicated
that customers simply ignored the ban. Overall, this implies that
smoking still occurs in approximately one out of every four
establishments.
3.5.5.3
The survey results indicate that the majority of establishments
(59.3%) experienced a decrease in business since the ban went into
effect on January 1, 1998, while 30.3% experienced no effect, 3.7%
refused to answer or did not know and only 6.7% experienced an
increase in business. The 178 establishments that experienced a
decrease in business averaged a 26.2% decrease in sales, with over a
HANZ Submission
Page 13
3.5.5.4
third of the establishments (35.4%) experiencing a decline of over
30%. In contrast, the 20 establishments that experienced an increase
in business averaged only a 7.8% increase in sales, with the majority
(60.0%) experiencing less than 10% increase.
Of the establishments that experienced a decrease in business, 89.3%
experienced a decrease in week-day customer traffic and 81.5%
experienced a decrease in weekend customer traffic. In contrast, 60%
of the establishments that experienced an increase in business
experienced no change in average week-day customer traffic, while
70% experienced an increase in weekend customer traffic.
3.5.5.5
Separating the respondents by establishment type indicates that bars
attached to restaurants/hotels may have been less adversely affected
than stand-alone establishments and nightclubs since the ban went into
effect on January 1, 1998. According to the survey, only 44.8% of the
connected establishments reported a decrease in business, as opposed
to 81.3% of the stand-alones and 66.7% of the nightclubs. In terms of
average customer traffic, only 47.4% of connected establishments
indicated a decrease in weekday counts, while only 37.4% indicated a
decrease in weekend counts. The largest percentage of connected
establishments reported no effect to either weekday (47.4%) or
weekend (49.1%) counts. In direct contrast, 79.6% of stand-alones
and 61.9% of nightclubs indicated decreases in weekday customer
traffic, while 75.0% of stand-alones and 57.1% of nightclubs indicated
a decrease in weekend customer traffic.
3.5.5.6
The smoking ban appears to have had the following negative impact on
the respondents’ operations :
50.4% of the respondents indicated an increase in customer
complaints/fights;
65.0% indicated a loss of regular customers;
59.0% indicated a loss of tips/gratuities for the bar and/or
serving staff.
3.5.6 The anti-smoking lobby not only continue to exaggerate the extent of harm
done by second-hand smoking but also the extent to which bans apply
internationally. At the recent Hospitality Association Conference in
Wanganui, October 2001, ASH Director Trish Fraser stated that smoking had
been banned in restaurants and bars in Australia. This is simply incorrect and
Australian Hotels Association President Peter Burnett, present at the same
forum, clarified the position indicating there are restrictions on smoking in
restaurants and bars but not bans.
It is still legal to smoke in a bar in
Australia.
HANZ Submission
Page 14
3.5.7
Indeed as a generalisation the current regime in Australia would be very
similar to New Zealand extending the current 50% smoking restriction in
restaurants to 100% and leaving bars with their current 100% exemption.
3.5.8 Similarly the same team of passionate anti-smoking advocates continue to use
the so-called ‘research’ of Professor Alastair Woodward and Dr Murray
Laugeson to inflate the risks associated from second-hand smoke. The NZ
Listener in their article of 28 July 2001 (copy attached, Appendix 6) states :
“A recent series of tv ads was described by the Cancer Society as “hard
hitting television advertisements [to] bring home to New Zealanders
the shocking fact that second-hand smoke kills”. Almost 400 New
Zealanders die each year from breathing in other peoples’ cigarette
smoke, according to a press release timed to coincide with the ad
campaign.
That many? Back in 1997 Alastair Woodward, Professor of Public
Health at the Wellington School of Medicine, and ASH Director Trish
Fraser, estimated that annually New Zealand passive smoking leads to
at least 20 deaths and 1,000 admissions to hospital.
By September 2000 Woodward and anti-smoking anti-tobacco
campaigner Murray Laugeson found that there were 388 deaths a year
in New Zealand from passive smoking, although they admitted that
‘there are many uncertainties associated with this calculation’ and the
plausible number of deaths each year could range from 160 to 621.
And earlier this year, the Dominion reported on the Wellington School
of Medicine survey that found that passive smoking killed around 140
New Zealanders a year.
No wonder the anti-smoking crusaders zeal in interpreting data has
been questioned. Taking the notorious 1992 study by the US
Environmental Protection Agency which found that tobacco smoke was
a class A carcinogen, a finding since quoted with approval by every
anti-smoking group in the world, despite the reports of glaring
inaccuracies.
Just because someone thinks something should be so, doesn’t mean it
is. The first report of the Scientific Committee on Tobacco and Health
(SCOTH) published in Britain in March 1998, concluded that passive
smoke caused lung cancer, heart disease, serious respiratory illness and
asthma attack, was dismissed by Swedish Toxicologist Robert Neilson
as a statistical trick.
HANZ Submission
Page 15
The ‘New Scientist’ described how a study by New Orleans
researchers which found that second-hand smoke could cause heart
problems was published in the ‘New England Journal of Medicine’ but
noted that the same issue contained an editorial in which John Vallier
of the University of Chicago said second-hand smoke became so
diluted in the air that 25% increased risk of coronary heart disease
described by the New Orleans research just wasn’t possible. As the
magazine pointed out, most doctors will tell you that it may be wise to
limit your exposure to cigarette smoke if you are a non-smoker but
there is still wide disparity on how much damage passive smoking
causes.
Even worse, is the determination to blame passive smoking for a raft of
ills, maybe diverting attention away from other factors such as diet and
genetics. In questioning the finding of anti-smoking researchers,
Professor Peter Finch, Foundation Professor of Mathematical Statistics
at Monache University in Australia warned of a trend towards
‘dogmatism’ by pressure groups intent on persuading politicians to
adopt their beliefs to force everyone to behave in ways they believe is
good for us.
Finch, a non-smoker, stressed that he wasn’t questioning the health
risks of smoking, just interpretation of data.”
3.5.9
The message is it is not appropriate that public policy is determined for the
majority based on research whose methodology is designed to optimise the
most negative outcome possible, largely using extrapolated interpretative data
from small research projects of dubious quality.
3.6
Tourism Implications
3.6.1 New Zealand has a strong and growing tourism presence from Asia – a part of
the world which has a strong smoking culture. For example, it is estimated
that 70% of the Japanese adult population smokes.
HANZ Submission
Page 16
3.6.2 Tour groups from Asia typically stay in large accommodation hotels. These
hotels are caught by this legislation through the provision of bar and restaurant
facilities. The configurations of many are such that it is not physically
possible to create the separate enclosed area envisaged in this legislation.
This means they will be in the invidious position of being required to be
smoke-free and having to enforce and police it. This will be extremely
challenging.
3.6.3 It also leaves New Zealand well short of the hospitable welcome we are trying
to portray to all visitors.
3.6.4
As previously stated, minimum air quality standard is a more practical solution
to meeting the needs of our staff, locals and international visitors.
HANZ Submission
Page 17
PART 4 :
4.1
SPECIFIC COMMENTS ON SUPPLEMENTARY ORDER
PAPER NO. 148
Common Air Space
4.1.1 The Association believes there are some real difficulties with the definition of
‘common air space’ particularly as it applies to those areas sharing a common
ventilation system. The Association believes that the broadness of this
definition will have unintended consequences. For example, legal advice
suggests that this provision will capture hotel bedrooms as part of the common
space and will therefore require all hotel bedrooms where they share a
ventilation system to be smoke-free. The Association does not believe that
the Government intended to prevent hotel patrons from smoking in the privacy
of their bedrooms.
4.1.2 While being totally inappropriate, this is an invasion of individual rights and
has enormous consequences in terms of policing.
4.1.3 Given the wide powers provided for under this legislation to the ‘smoke
police’ it would appear that they have powers of entry to hotel bedrooms if
they suspect hotel patrons are smoking.
4.1.4 The Association does not believe this was intended or is acceptable in any
shape or form.
4.1.5
Recommendation
(a)
That accommodation rooms be explicitly exempted from the
smoke-free legislation; and
(b)
That the definition of ‘common air space’ not include shared
ventilation where those ventilation systems can demonstrate they
have the specifications to ensure that second-hand smoke does not
spread through the system.
HANZ Submission
Page 18
4.2
Smoking in Existing Bars, Restaurants and Casinos until 1 January 2007
(Section 12 & 13)
4.2.1 The Association supports the long lead-in time applying to the introduction of
this legislation which will allow the industry and its operators time to make
any operational changes. Such lead times should apply to any amendments
made through the Parliamentary process.
4.3
Smoking in Existing Bars, Restaurants and Casinos after 1 January 2007
(proposed new section 12a 13aa 13ab & 13b)
4.3.1
The Association strongly objects to this proposal for creating a nonsmoking room as being impractical, inequitable and unreasonable.
4.3.2 For many premises this provision will mean that they have no choice but to go
smoke-free because it will simply be impracticable to divide their premises.
The growth and vibrancy of the New Zealand hospitality industry has come
about in large part with the emergence of small modern café bars. The
imposition of a wall would destroy the atmosphere and ambience of these
premises. If these small café bars are required to go smoke-free, they will
then be at a significant disadvantage to those larger operators who already
have separate rooms where they can accommodate the proposed legislative
requirements to provide a smoke-free room.
4.3.3 There is little evidence to suggest that bar patrons are demanding a smoke-free
bar. On current evidence of market demand, the provisions in this legislation
would see a separate smoking area created covering half the area of the
premises into which the entire existing patronage would have to try to fit.
Non-smoking patrons generally wish to be with their smoking friends and it is
highly likely that under this legislation, premises will end up with 50% of their
area being under-utilised. It is anticipated that the smoke-free area would
simply become an unused space - incurring overhead charges of rates,
insurance etc but not generating any income.
HANZ Submission
Page 19
4.3.4
Based on our extensive survey of our Association Members and
extrapolating that data across the industry it is anticipated that the cost of
providing these separate walls would amount to $162.3 million. In
addition, the ventilation and filtration costs is estimated at $115.5 million
for a combined industry compliance cost of $277.8 million.
4.3.5
The Association contends that the requirement to have a wall must be
removed.
4.3.6
Recommendation
That licensed premises, restaurants, casinos and clubs wishing to
accommodate smokers from 1 January 2007 be required to install a ventilation
system that complies with the ventilation and air conditioning requirements of
Section G4 (acceptable solution ASI) of the NZ Building Code under the
Building Act 1991.
4.4
Enforcement (Clause 14 refers)
4.4.1 The Association strongly objects to the creation of ‘smoke police’ under these
provisions and believes that the Association’s recommendation in terms of
ventilation and filtration would remove the need for this provision. These
measures would then be monitored as part of the annual Building Warrant of
Fitness requirement under the Building Act, significantly reducing the
bureaucracy and cost of enforcement.
4.4.2 The Association is also concerned that unqualified personnel at a local level
will be given powers not dissimilar to those enjoyed by police officers.
4.4.3 This legislation effectively creates ‘smoke police’ appointed at the discretion
of the Director General of Health.
HANZ Submission
Page 20
4.4.4 The Association believes that enforcement of this legislation should be in the
hands of police officers who are trained to deal with offences, trained in the
law, and trained in dealing with what are likely to be controversial and
confrontational situations.
4.4.5
Recommendation
That enforcement under this Act be carried out by police, and that
amendments are made as recommended by the Association with
enforcement via the annual inspections required under the Building Act.
4.5
Penalties and Offences (Section 7 refers)
4.5.1 The Association believes that penalties should apply to the smoker rather than
the venue. With the penalties structured as they are in the SOP it is the
operator of the premises who effectively becomes the ‘smoke police’. The
Association believes it should become an offence to smoke in a non-smoking
area, and that such an offence should be subject to an instant fine similar to
that applied to minors being on licensed premises or carrying alcohol or
consuming alcohol in a public place.
4.5.2 Under this Bill all the onus is on the operator with no responsibility
whatsoever on the smoker.
4.5.3 A smoker with a vendetta against a premise could lodge a complaint then
when the smoke police turn up, ‘light up’ thus causing a penalty to be invoked
on the operator.
4.5.4 The Association believes that the operator should only be penalised for not
having the required ventilation and filtration system in place and providing the
necessary smoke-free area. People smoking in those smoke-free areas should
be the ones subject to any penalties.
HANZ Submission
Page 21
4.5.5 It is concerning that the approach on penalties seems to reflect the extremist
position of ASH. At the recent Association Conference in Wanganui,
October 2001, ASH spokesperson Trish Fraser was challenged ‘If tobacco is
so dangerous why don’t you campaign for it to be banned”. Trish Fraser
replied ‘I don’t want to make criminals out of my friends and family” [who
smoke]. Apparently she has no qualms about making criminals out of mum
and dad hospitality operators.
4.5.6
Recommendations
Firstly, that the only penalty available against an operator is for not
having an approved ventilation and filtration system in place.
Secondly, there should also be a penalty available against any person who
smokes in a non-smoking area.
4.6
Vending Machines (Part 2, Section 8 refers)
4.6.1 The Association is totally opposed to the amendment removing the current
exemption allowing cigarette vending machines to be located in supervised or
restricted areas of licensed premises. This provision ensures that vending
machines are only located where minors are excluded unless in the company
of a parent.
4.6.2 The evidence provided by the anti-smoking lobby that a significant number of
young people are accessing cigarettes from vending machines is based on very
limited research. Antecdotal evidence suggests that where this is occurring, it
is related to vending machines being illegally located outside restricted or
supervised areas within licensed premises. That being the case, what is
needed here is not a change in the law but simply the current law as it applies,
being enforced. Given that all vending machines are located in supervised
and restricted areas, then minors simply do not have access to these vending
machines. This is not an area that needs a law change, it simply needs
enforcement.
HANZ Submission
Page 22
4.6.3 It is also arguable that prohibitions on self service vending machines are not
reasonable or demonstratably justified limitations on the right protected by
section 21 of the New Zealand Bill of Rights Act. The Association believes
that the restrictions are disproportionate to the legislative objectives because :
4.6.3.1
The prohibitions on self-service vending machines lack rational
connection to the relevant legislative objectives (contained in the
explanatory note to the Smoke-free Bill and section 21 of the Smokefree Act). There is no evidence that these measures would deter a
percentage of smokers or potential smokers from buying cigarettes,
given that they are still legal and still available. In such circumstances
it is difficult to perceive this particular restriction as furthering the
public health objective contained in the explanatory note.
4.6.3.2
Furthermore, prohibitions on self-service vending machines arguably
imbue smoking and the buying of cigarettes with an illicit flavour that
is likely to appeal to young people. Therefore it will not achieve the
reduction in social approval objective contained in section 21 of the
Smoke-free Act. (The other objectives contained in this section relate
to the monitoring and regulation of harmful substances in cigarettes
and the labelling of cigarettes so are not applicable).
4.6.3.3
There is no proportionality between the effects of the prohibitions on
self-service vending machines and the legislative objectives. There is
no evidence that prohibitions on self-service vending machines will
have any effect on the buying habits of smokers or potential smokers.
In the absence of such evidence it cannot be said that they contribute in
any meaningful way to the public health objective.
4.6.4 The Association also contends that prohibition is aimed at the expropriation
of private property with no compensation payable to the property owners.
This flies in the face of an important (if unwritten) constitution principle that
such compensation be payable.
HANZ Submission
Page 23
4.6.5
Recommendation
That the current exemptions for vending machines located in restricted
and supervised areas of licensed premises be preserved.
HANZ Submission
Page 24
PART 5 :
5.1
INDUSTRY VIEWS AND DATA
To ensure the Association was appropriately representing the views of its
diverse membership, a survey across restaurants, country hotels, café/bars,
accommodation providers and taverns was undertaken with a sample size of
343 properties. This survey strongly supports the Association’s contention
that this legislation is unwanted by the vast majority of hospitality operators,
their patrons and staff.
5.2
Profile of Current Smoke-free Policies
Restaurant
Smoke-free
Partly Smoke-free
Has Separate
Smoke-free area
Totally smoking
No comment
Bar/Café
7%
67%
20%
Country
Hotel
0%
29%
34%
Tavern
Total
5%
41%
11%
Accommodation
0%
60%
23%
0%
27%
26%
1%
36%
24%
7%
0
38%
0
43%
0
17%
0
46%
0
38%
0
5.2.1 Significant features of profile :
24% have a smoke-free area available.
only 38% are totally smoking.
1% are smoke-free.
5.3
Attitude to Proposed Restrictions to Apply from 1 January 2007
On average, 97% were opposed to the legislation.
Restaurant
Country Hotel
Café/Bar
Accommodation
Tavern
5.4
Opposed
87%
100%
98%
86%
99%
Supports
13%
0
2%
8%
1%
No comment
0%
0%
0%
6%
Cost of Proposal
Average cost of installing a wall
Average cost of ventilation
Average cost of jobs
HANZ Submission
$21,151
$15,048
4.74 full-time equivalent
Page 25
5.4.1 Comment
Using Statistics New Zealand data, there are a total of 7,676
premises included under the categories of clubs, cafes and restaurants, pubs,
taverns and bars, hotels and backpackers and hostels. In a worst case scenario
this legislation has the potential to cost the industry :
For the wall
For the ventilation
Total
5.5
$162.3 million
$115.5 million
$277.98 million
Impact on Business
5.5.1 Respondents considered that the legislation would have the following impact
on their businesses :
Grow by 10%
Grow by 20%
Stay the same
Drop 10%
Drop 20%
Drop 30%
Close
5.5.2 Comment
1%
0
6%
9%
18%
40%
23%
In the year 2000, customers spent $261 million (Statistics New
Zealand) on liquor in pubs, taverns, bars and clubs. A drop in business of :
10% would cost a minimum of
20% would cost a minimum of
30% would cost a minimum of
5.5.2.1
$26 million per annum
$52 million per annum
$78 million per annum
This does not account for the cost of closed businesses or cost of lost
food and other sales.
5.6
Support for Voluntary Code/Minimum Air Quality Standard
Support
Opposed
No comment
HANZ Submission
91%
5%
4%
Page 26
5.7
Current use of Ventilation/Filtration Equipment
5.7.1 79% currently have ventilation/filtration equipment installed, and
43% have installed or upgraded in the past five years
5.7.2 Comment
A significant investment has been made on a voluntary basis to
improve hospitality air quality.
5.8
Staff Concerns
5.8.1 Respondents were asked to consider their staff’s views about working in a
smoking environment.
Staff concerned
Staff not concerned
5.8.2 Comment
For restaurants and accommodation providers, this was :
Staff concerned
Staff not concerned
5.9
9%
91%
20%
80%
Patron Concerns
5.9.1 Respondents were asked to consider their patron’s views about being in a
smoking environment :
Patrons concerned
Patrons not concerned
No comment
5.9.2 Comment
9%
90%
1%
Restaurants and accommodation providers had a much higher
concern with 24% indicating patrons had a concern about being in a smoking
environment.
5.10
Respondents’ Comments
5.10.1 Respondents had the opportunity to make additional comments. Attached as
Appendix 7 are the unedited comments of the sample survey respondents.
HANZ Submission
Page 27
5.11
Conclusion
5.11.1 The opposition to the legislation, as expressed by individual industry
operators, could not be stronger. They, their staff and their patrons
don’t want it to happen and they believe it will be either impossible or
significantly costly to implement. Ultimately the industry believes this
will cost jobs and businesses.
5.11.2 The strength of feeling is well expressed within the comments included in
Appendix 7. Industry is asking Members of Parliament to listen and take
account of what a very strong majority are saying about legislation which
impacts on their livelihoods and the freedom of choice for them and their
patrons.
HANZ Submission
Page 28
PART 6 :
6.1
WORLD WIDE COMPARISON
The perception the anti-smoking lobby try and create is that New Zealand is
falling behind the rest of the world in terms of smoke-free legislation as it’s
applied to the rest of the world. This is simply not correct.
6.2
The Association has looked at overseas legislation as it applies to hospitality
venues and has identified those with restrictions which are more than, similar
to, or less than, applies currently in New Zealand.
6.3
It was found that :
-
6.4
-
103 countries have more liberal legislation than those currently
applying in New Zealand.
20 countries have similar restrictions to New Zealand.
-
25 countries have more restrictive regimes than New Zealand.
The countries in each category are listed on the next page.
HANZ Submission
Page 29
6.4.1 Countries with More Liberal Smoking Legislation as it applies to
Hospitality Venues
Albania
Algeria
Andorra
Armenia
Austria
Azerbaijan
Azores
Bahamas
Bahrain
Bangladesh
Barbados
Belarus
Benin
Bermuda
Bolivia
Brunei
Bulgaria
Burkina Faso
Cambodia
Cameroon
Canary Islands
Channel Islands
China
Colombia
Dominican
Republic
Gabon
Cuba
Ecuador
Czech Republic
El Salvador
Denmark
Faroe Islands
Gambia
Georgia
Germany
Ghana
Gibraltar
Greece
Guyana
Honduras
Guyana
Honduras
Iran
Iraq
Italy
Ivory Coast
Jamaica
Japan
Jordan
Kazakhstan
Kenya
Korea (South)
Kyrgyzstan
Lebanon
Libya
Luxembourg
Madagascar
Malawi
Maldive Islands
Malta
Mauritania
Mauritius
Mexico
Moldova
Morocco
Nepal
Netherlands
Nigeria
Pakistan
Portugal
Qatar
Romania
Papua New
Guinea
Russia
Saudi Arabia
Sierra Leone
Spain
Sri Lanka
Sudan
Suriname
Swaziland
Switzerland
Syria
Tanzania
Tunisia
Turkey
Uganda
Trinidad &
Tobago
Ukraine
United Kingdom
USA
Venezuela
Vietnam
Canada
1
2
San Marino
Uruguay
United Arab
Emirates
Uzbekistan
Western Samoa
Yemen
Yugoslavia
Zambia
Zimbabwe
(Serbia &
Montenegro)
Note 1:
Canada The majority of Canada permits smoking. Some
provinces and cities are more restrictive.
Note 2 :
United States of America The majority of States have no
restriction on smoking in hospitality venues with only
California being more restrictive. A small number of cities are
also more restrictive.
HANZ Submission
Page 30
6.4.2 Countries with Similar Smoking Legislation as it Applies to Hospitality
Venues
Argentina
Botswana
Egypt
Fiji
Cape Verde
Islands
Finland
Estonia
Hungary
Ireland
Malaysia
Mongolia
Panama
Philippines
Poland
Senegal
Slovak Republic
Sweden
Taiwan
Thailand
France
6.4.3 Countries with More Restricted Smoking Legislation as it Applies to
Hospitality Venues
Australia
3
Belgium
Chile
Costa Rica
Bosnia and
Herzegovina
Croatia
Brazil
Guatemala
Iceland
India
Israel
Kuwait
Latvia
Lithuania
Macedonia
Nicaragua
Norway
Oman
Paraguay
Peru
Puerto Rico
Singapore
Slovenia
Cyprus
South Africa
Note 3:
Australia Restrictions apply to where food is served.
Smoking is permitted in most bars.
HANZ Submission
Page 31
PART 7 :
7.1
FREEDOM OF CHOICE
Choice
7.1.1 Hospitality venues are not public places but are private venues where business
operators provide hospitality to patrons. Operators can decide to exclude
patrons provided they do not discriminate on any of the grounds of
discrimination set out in the Human Rights Act.
7.1.2 Operators create business plans for their businesses based on their perception
of customer demand. They are always on the look out for a ‘point of
difference’. Operators who have chosen to have a smoke-free operation have
determined that to be their point of difference. By requiring every other
hospitality operator to be smoke-free, those already smoke-free will lose their
competitive edge.
7.1.3 Visiting or working in a hospitality venue is not compulsory. The antismoking campaigners argue that the employees don’t have a choice. This is
simply incorrect. Nobody is forced to work in a hospitality venue or in
particular, an under-ventilated smoky one.
7.1.4 People aren’t forced to join the army (where they might get killed) or work as
a gardener where they might get wet or on a farm where the risk of accident is
high.
7.1.5
Based on the Association’s own survey, 79% of hospitality venues have
ventilation/filtration systems in place and 43% have either been fitted or
upgraded in the last five years.
7.1.6 Hospitality is about adult venues with adults, both employees and patrons,
making adult choices to be there.
HANZ Submission
Page 32
7.2
New Zealand Bill of Rights Act
7.2.1 The Association, having sought legal advice, believes that Supplementary
Order Paper no. 148 may contravene the New Zealand Bill of Rights Act in
two particular areas.
7.2.2 Firstly, the Association contends that Supplementary Order Paper no. 148 is in
contravention of clause 21 of the Act. That is, that the proposed hospitality
restrictions amount to an unreasonable seizure of the right of bar, restaurants
and casino owners to control their premises as they see fit. After all, the
restrictions are not being proposed for private clubs, yet bars restaurants and
casinos are private businesses, and tobacco is still a legal and legitimate
product.
7.2.3 Secondly, although it has long been one of New Zealand’s unwritten
constitutional principles that private property can be taken by the Crown in the
public interest, it has always been on the proviso that the dispossessed owner
was fully compensated.
7.2.4 Supplementary Order Paper no. 148 does not make any attempt to honour this
proviso.
HANZ Submission
Page 33
PART 8 :
8.1
CONCLUSION
The hospitality provisions in this Bill are extreme and opposed by the
industry. Excellent progress is being made with most operators
exceeding the requirements of the existing legislation. This process of
evolution will continue in pace with society’s needs without draconian
intervention.
8.2
The cost of this legislation in terms of compliance, removal of individual
choice, and cost to businesses, are not justified.
8.3
Whatever is finally determined must apply equally to all hospitality
venues.
8.4
Differentiation will simply create even greater burdens, costs, and
distinctions which cannot be justified on logical, health or moral grounds.
8.5
Adults should still be able to make adult choices about legal adult
products in adult only environments.
8.6
The Hospitality Association wishes to be heard with respect to this
submission.
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HANZ Submission
Page 34