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Under a law that came into force at the beginning of the year, smoking has been completely banned (not even allowing any smoking areas) in all workplaces in Spain, except in the hospitality and gambling sectors. There, depending on the size or where the premises are located, different regulations apply. Some important lessons are emerging from this two-tier system.
The regulations allow the owners of bars and restaurants having a “useful surface for clients” smaller than 100 square metres to decide whether or not they allow smoking in their premises. They can also decide to have a partial ban, either by making separate areas according to the regulations for larger premises, or by putting up signs informing customers in which part of the premises (without physical barriers) smoking is permitted. There is no definition in the law about the meaning of “useful surface”, so owners tend to want as much useless surface as possible to avoid having to be considered a larger place. Most bars fall in this category, and most of them allow smoking, as they fear the loss of revenue.
In those bars and restaurants larger than 100 square metres of “useful surface” smoking is banned, but completely isolated smoking areas can be created, requiring good ventilation systems, and can occupy as much as 30% of the useful surface. If these changes are not carried out by 1 September this year, the entire premises must be smoke-free. This means some owners have to invest in reshaping the premises, or else ban smoking. Many say they do not understand why the law makes this difference.
Spain’s regional governments have the right and duty to assure compliance to the new law, and can even improve the legislation within their territories (see Spain: going smoke free. Tobacco Control 2006;15:79–80). The first problem arose from the lack of time to understand, interpret and prepare guidelines for those affected by the law. It was published on 27 December 2005, and entered into force just days later, on 1 January 2006. More than three months later, regional governments were still setting guidelines, with some significant differences between regions.
The law lacks definitions of two concepts where interpretation is crucial, especially in the hospitality sector. Even after several meetings of tobacco control experts from the different Autonomous Communities, it has not been possible to get agreement. One concept not defined is “useful surface”, and the other has to do with premises where two different activities occur. For example, the law allows for up to 10% of the useful surface for smoking areas in bus or train stations and airports. To avoid the surface dedicated to bars or restaurants becoming the smoking area of such premises, the law introduces the concept of “different activities”, allowing for smoking sections in both the bar and the rest of the station or airport. But in the hospitality industry, owners of so called “bar-restaurant” venues larger than 100 square metres argue that it is up to them to decide what to do if the “different activities”, say bar and restaurant, are individually smaller than 100 square metres. Under this interpretation, smoking would be permitted in many more venues.
Independently of their size, those bars and restaurants located (among others) within factories, public administration buildings, hospitals or educational settings, or selling takeaway food, must be completely smoke-free. In malls and shopping centres, on the other hand, smoking is banned in smaller venues. For all these venues, the owners say the law has made some of their clients change to bars elsewhere that allow smoking.
Some of the owners of bars and restaurants that initially chose to go smoke-free later reversed their decision because of a real loss of smoking customers. Although nearly 70% of the Spanish population are non-smokers, they are (at least at present) under-represented among the clients of bars and restaurants.
The different treatment given by the law to the hospitality industry has provoked both negative and positive reactions. On the one hand, some places are now smoke-free, and others are moving towards becoming smoke-free in a few months. Furthermore, the hospitality sector owners are now divided, with some representatives of the bar and restaurant associations asking for a total ban in all premises, as they recognise this will be the only way to eliminate the differences created by the law within the sector. They assume that sooner or later new regulations, maybe from the European Union or as a result of a judicial decision, will oblige all of their businesses to go smoke-free.
According to official sources, the workplace ban has been implemented with success in most places. However, the situation for waiters has actually worsened; this is because smoking is no longer allowed in offices and so smokers have moved to the nearest bar during breaks or after the office closes. It has also got worse for customers in some regions, as in the past local regulations required even small businesses to have separate (although not physically separated) areas, and these have now disappeared.
But what about the workers? The law cites the International Agency for Research on Cancer (IARC) report on passive smoking, recognising that it can cause cancer, hence the reason why smoking has been banned in the workplace. So why does it not offer the same level of protection to those working in the hospitality sector? Perhaps the main reasons were pressure from the tobacco industry, to which the hospitality industry so closely allied itself for so long, and the lack of demand for protection by trade unions. The main mistake in this law has been the fact that it considers workplaces in general and the hospitality sector as being different scenarios. In the first, those to be protected are the workers, but in the second, the customers.
It has been disturbing to see senior health officials arguing that in the hospitality sector, customers can choose where to go so long as there are smoke-free areas, but ignoring the fact that in the smoking areas, the workers are not free to choose where to work. One of the key factors in Ireland’s success was the commitment of the trade unions, in strong contrast to Spain. More needs to be done to inform trade unions, politicians and the public about passive smoking, and especially to convince politicians that these regulations not only protect the health of employees, but do not have economic implications leading to job losses.
In summary, the chaos generated within the hospitality sector in Spain simply underlines how smoke-free laws applying equally to all public places (as in Ireland) are much easier to implement. The government has to recognise the problems created by the law, and change the situation as soon as possible. The hospitality industry may actually be prepared for the change, provided the law applies equally to all premises. From the broader public health perspective, including trying to persuade smokers to quit, non-smoking regulations are of great help, as in effect they make smoking a private matter that should never be allowed in shared places.