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Israel: empowering the public to enforce smoke-free law
1. Amos Hausner
1. Israel Council for the Prevention of Smoking;hausnner{at}bezeqint.net

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Israel was among the first countries to adopt laws protecting people from exposure to second-hand smoke (SHS). The first such law was adopted in 1983. In 1994, all private and public workplaces were made subject to the law, and in 2001 the law became applicable to most places open to the public, including restaurants, cafés, and other places of leisure and entertainment.

The problem, however, is that implementation of the law is far from perfect. People keep complaining that there is still smoking in many places of entertainment and some public places as well. Local authorities, which are supposed to enforce the law, do so unwillingly and sporadically. Hence the need arose to launch a thorough campaign for enforcement.

The idea is that many people who are exposed to SHS will enforce the law by filing private law suits for compensation, mainly in small claims courts, against business owners in whose establishment smoking is still prevalent, who either do not post no-smoking signs as prescribed by law, or who ignore the law in other ways. This mechanism is simple, fast, effective, and has great potential to deter recalcitrant owners and to bring about comprehensive enforcement all over the country.

The campaign, which started last year and has been steadily gaining momentum, consists of three concurrent parts: court actions, legislative measures, and media coverage.

The first court action was launched in 2005, when Irit Shemesh, a woman from the northern city of Carmiel, together with her husband and two children, visited an Italian restaurant in Jerusalem. She was pregnant at the time, and found herself and her family surrounded by tobacco smoke, including smoke from one of the waitresses. Her complaints were to no avail, yet she could not just walk away: it was a freezing February day, and the children were in the middle of eating. She suffered the resulting discomfort for several days, as did the other members of her family.

Irit’s lawsuit in the Jerusalem small claims court for civil compensation was only partially successful. The judge, while finding that violation had occurred, only awarded her compensation from the restaurant’s owners at the modest amount of the expenses she had—the price of the family’s meal. An appeal to the district court left the result unchanged, as a discretionary matter to be determined by the court of first instance. Therefore, I launched a long shot venture for her, of a leave to appeal motion before the supreme court, the highest court in the country. The motion stated that this was a matter of public importance due to the right of the individual not to be exposed to tobacco smoke, the need to respect the law, and the international obligations which Israel had assumed by ratifying the Framework Convention on Tobacco Control in August 2005. I also relied on the need to protect public health, and the frequent occurrence of such violations.

Supreme court judge Elyakim Rubinstein decided to allow the appeal, emphasising the importance of the matter and the case. He increased the compensation tenfold to NIS 1000 (US$240), noting that this was only a symbolic compensation, as in such a case it was impossible to prove specific damage. He suggested that the matter now lay with the legislature. The case was extensively covered by Israeli and international media in the summer of 2006, and it was evident that the road to protection from SHS by the courts was now open. The second case was determined by the small claims court in Tel Aviv, in April this year. The judge awarded Hadas Sella, a student, compensation of NIS 2000 (US$480) for 20 minutes exposure to SHS in a Tel Aviv restaurant. It is worth noting that within 7 months, the compensation for such exposure had been doubled. Even so, the judge emphasised that the compensation requested by Sella was “modest” and he therefore awarded it in full, leaving the possibility of courts awarding higher amounts in the future. This case also attracted widespread media attention.

Further judgements have followed, including record compensation to a musician from Tel Aviv, No’am Peled, who sued a shopping mall where he used to visit a gym. The mall had ash trays in the corridors, where people smoked freely, even including some of the security staff, and there were insufficient no-smoking signs. NIS 4000 (US$960) compensation was awarded, with a further NIS 500 (US$120) in court costs.

Following Judge Rubinstein’s recommendation that a legislative complimentary measure was required, I approached Gilad Erdan, a prominent member of the Knesset (parliament), who succeeded in passing laws to reduce the numbers of road accidents. Erdan willingly agreed, and I drafted a bill for him to amend the current law by inserting several important new principles to promote enforcement. These include imposing specific criminal liability on those who control public places, if they do not ensure enforcement of the law, backed by heavy fines, as well as higher fines for those who smoke in public places. The bill also includes a statement that the purpose of the amended law is to prevent smoking in ALL public places, and to protect people from the dangers of SHS. The bill is well on the way to approval.