Statutory Review of the NSW Public Health (Tobacco) Act 2008
Submission by the Non-Smokers’ Movement of Australia Inc.
To: Strategic and Policy Branch
Centre for Population Health
NSW Ministry for Health
tobacco@doh .health .nsw .gov .au
Thank you for the opportunity to make a submission in regard to this very important health legislation.
We will respond to all issues in the Review as well as making Statements about other important tobacco-related measures.
The Non-Smokers' Movement of Australia Inc. (NSMA) has been fighting for people's rights to breathe clean air, free from the poisons in tobacco smoke, since our organisation was formed in 1977.
This submission about the Review of the Public Health (Tobacco) Act 2008 in NSW is based on our primary aim:
"To uphold the rights of all people to breathe air free of tobacco smoke".
We believe that we can only achieve our aim by approaching tobacco smoking in two ways:
Question 1 NO
It is insufficient for the purpose of eradicating tobacco’s substantial health harm and intolerable financial burden. The object needs to be strengthened with further specific and relevant points which will be outlined in Question 2.
Question 2. Yes
1. Toxic Air Contaminant: Second-hand tobacco smoke must be declared a toxic air contaminant. This will strengthen all smoke-free legislation.
2. Unsafe Product: Unless it can be proven otherwise, tobacco must be declared an unsafe product. This, also, will strengthen all legislation.
3.Prohibition can work. Set an End-Date for Tobacco in NSW. It is generally accepted by many tobacco control “experts”, by governments (and of course by the tobacco industry), that prohibition of tobacco products would force production and marketing underground into a totally uncontrollable black market. This perception (of the futility of prohibition) should be questioned, challenged, and examined regularly. There are several important reasons why banning tobacco could work in many communities. A. The vast majority doesn’t smoke. B. Most of the remaining smokers want to quit. C. The community is sick of the toxins, stink and pollution from tobacco. D. There are alternative products available for smokers – products which neither harm the user nor anyone nearby.
It's interesting to note that all governments have agreed that, if tobacco smoking were introduced now, it would be banned immediately.
4. Sue Big Tobacco to recover Costs. NSW Government must follow other governments overseas which have successfully sued Big Tobacco to recover costs involved in treating victims of this highly unsafe and toxic product.
5. Tobacco- Free Generation: NSW Government must legislate to protect all young people by ensuring no sales or supply to anyone born in the year 2000 or beyond. Other age-based legislation already applies in other fields, including employment.
6. Disinvestment in Tobacco: All Governments (State and Local), all businesses, all organisations and all individual members of the public must be fully informed on where and how to divest from Big Tobacco.
7. Babies of Pregnant Smokers: The rights of the unborn and newborn child must have priority over the so-called right of a mother to smoke, causing harm to the child, during pregnancy.
8. Ban political donations from Big Tobacco and from Tobacco-Friendly Organisations and Corporations, including the gambling, liquor and “hospitality” industries.
9. Butt-Tossing (Unsafe Disposal of Butts) from Vehicles and in other Public Places to be subject to Criminal Law due to widespread knowledge of the dangers and due to the potential for human and environmental devastation.
10. Ban past, current and future agreements and Memoranda of Understanding between organisations and political parties which delay or may delay health advances in tobacco control. Past agreements for future health delays must be extinguished.
11. Butt-return and Purchase Scheme: Regulate that no tobacco will be sold unless an equivalent number of butts is returned to the Retailer, the butts and packets to be placed in sealed containers for final environmentally sound disposal at their source at Big Tobacco. Such a scheme can be introduced simply and will reduce hazards and dangers caused by tossed butts, (fires, pollution, and poisoning wildlife), as well as delay smokers’ purchases. It will also ensure that Big Tobacco is forced to dispose of the toxic remains and packaging from its products, which currently cause major pollution everywhere.
Question 3. No.
There are insufficient provisions to secure the Objects of the Act.
Question 4. Yes
Regarding the key provisions in the legislation as listed:-
A ban on display of tobacco products, etc. Tobacco cabinets continue to dominate display sections at the front of stores which sell tobacco, so that smokers and quitting smokers and children’s eyes are continually drawn to the size of the cabinet and even to the “Smoking Kills” sign. Out-of-sight cabinets, in fewer outlets, would help alleviate this problem.
A ban on smoking in cars when children under the age of 16 are present: We objected to this when the Act was first promulgated, as it should at least have included all minors (under 18) and should have provided for all people who cannot speak up for themselves, such as disabled, frail-aged and Non-English-speaking people. There should be no smoking in vehicles at all, especially with the knowledge that approximately 4000 fires are started each year around Australia by tossed cigarette butts, causing untold death and destruction.
NSW law states that drivers must always be in full control of the vehicle – this is impossible when a smoker is distracted by the actions of smoking, actions which include locating the packet, removing the cigarette, lighting the cigarette, smoking it, ashing it, and then disposing of it properly. Vehicle interiors are the smallest rooms which people enter – the dangerous health impact from second-hand tobacco smoke inside a vehicle is far higher than in any other space.
See also our detailed response to Question 10.
Question 5. No
A single point of sale:- It is imperative that purchasing tobacco not be made simpler or faster for either seller or buyer. There should only be one register at any one time. Other shoppers soon become accustomed to tobacco sale registers. Also, it is easier for interested members of the public to observe whether minors are being questioned appropriately about their ID if there is only one cash register. (see Question 5)
Question 6 No
Licensing scheme for tobacco retailers:- The Ministry’s stated preliminary view that a positive licensing scheme for retailers is unnecessary is, unfortunately, not borne out by Cancer Council’s research, nor by the advantages of strong regulation of such a lethal product which continues to be taken up by our young people.
We have consistently called for training and a paid licence scheme for retailers who are the public faces of Big Tobacco’s killing chain.
In NSW, other businesses are required to be licensed to produce dairy, meat, seafood and egg products, but not when involved in the sale of the product which continues to kill more people in this state than any other single product.
We support Cancer Council’s call for a complete overhaul of the current poorly regulated retailing notification scheme, (30 inspectors trying to cover nearly 10,000 retailers is totally inadequate), and add that a positive licensing system of retailers (together with licensing scheme for smokers) would be highly effective, ensuring that retailers would be fully educated about the dangers of this lethal product and that accurate records could be maintained.
License payments would ensure funding for rigorous inspections and retailers would be advised that, as with smokers, their license costs would continue to increase regularly in a bid to reduce retailer numbers and thus reduce availability of tobacco. Attractive incentives for refusing to sell tobacco would be offered. Everyone in tobacco control is aware of the “power of the price-rise” and the power of financial incentives in reducing demand.
No tobacco should be sold within a 300metres of any schools. Children are more likely to take up smoking when there are more tobacco outlets closer to school. Cancer Council’s report indicates what we already suspected, that tobacco outlet density is higher in disadvantaged areas, so it is obvious that a licensing scheme would be the best way to redress the imbalance. Such a scheme would limit the number and /or type of outlets, in a similar manner to liquor licensing schemes.
Minors (young sales-staff under 18) should not be allowed to sell tobacco –they should not be part of Big Tobacco’s killing chain. Those retailers who claim hardship at not being able to afford to pay adult staff should consider closing tobacco sales points when adults are not available.
Additionally, adult employees must have the opportunity to opt out of selling tobacco without penalty. They have the right to work in the retail industry without being involved in selling this lethal product.
Question 7. Yes
Tobacco-vending machines in licensed premises provide a trigger for impulse buys by quitting smokers who can be influenced to re-start smoking by the inhibition-lowering effects of alcohol.
Additionally, the vending machines themselves, even with negative-seeming “Smoking Kills” signs act as a reminder of smoking for quitting smokers. Any measure which prevents impulse buying (especially in alcohol-permitted venues) is preferable, so we strongly suggest that vending machines be banned and removed.
Question 8. No
Tobacco advertising and signage:- There is no need for large or medium-print signage to indicate the tobacco cash-register.
Small print signage, or an appropriate symbol (say a coffin) would suffice. Everyone would understand.
The SMOKING KILLS message should be enhanced with the words ‘SLOWLY AND PAINFULLY’.
Question 9 Yes
Combining the Public Health (Tobacco) Act 2008 with the Smoke-Free Environment Act 2000.
We agree that both pieces of Tobacco Control Legislation should be combined for the sake of simplicity and to reduce confusion, but not at the expense of delays to the current proposed measures.
So, we suggest that the currently suggested changes be implemented prior to combining the two Acts.
Question 10 Yes
Other issues which should be considered in this Review which relate directly to the Public Health (Tobacco) Act 2008
“THE ELEPHANT IN THE ROOM” Prosecution for supply of tobacco to minors by friends and family - it is well-known anecdotally that young people usually obtain tobacco from friends or family – some such suppliers don’t realise the significance of nicotine addiction on young bodies – nor that early take-up of tobacco can lead to huge dangers of long-term smoking and its well-known consequences – long and painful disease then early death. The chilling statement "the younger the take-up, the less likely to be able to quit" is surely serious enough to prompt strong and swift action to crack down on this deadly but familiar supply-chain of death .
We don’t hear of successful prosecution of these non-retail suppliers of tobacco, but, if we “do the sums” and are told that compliance is relatively high amongst the retail sectors, there must be thousands/ millions of cigarettes being supplied to minors all over the State by their so-called friends and family. Smoking begins for some at age 11 or 12 and will continue, probably increasing as the child “looks” older right through to age 18 and then beyond.
These supply chains must be broken and publicity must be given to cases to bring attention to this problem – detection should not prove too difficult if Inspectors are supported by local health authorities with the long-term aim of cutting smoking rates dramatically and of reducing Big Tobacco’s stranglehold on our young, mostly disadvantaged people. The problem is only exacerbated when young suppliers “get away with” breaking the law and then continue to supply a widening range of “friends of friends”.
“Criminalisation” of friends or family may seem unpalatable but this process can and will save thousands of lives in the end and show that our Government truly is committed (as it claims) to reducing smoking rates among young people.
The concept of licensing smokers has been suggested over many years and can no longer be brushed aside – it is a completely valid and sensible means of quickly reducing under-age smoking, examining smoking patterns, and encouraging reduction and quitting.
Smoker licensing is directly related to the objects of the Act, i.e. of reducing the supply of tobacco to children.
Various methods of licensing have been suggested over recent years, including those by our NSMA Inc. founder Brian McBride, and also by international expert in tobacco Control, Professor of Public Health at Sydney University, Professor Simon Chapman AO. Smokers would only be able to purchase a pre-determined quantity for a specific period, with lower license fees linked to lower quantities. Supply to friends or family would be vastly reduced as there would be little opportunity to obtain extra supplies.
License fees would pay for effective enforcement. Smoke-free Outdoor Dining and Drinking - This is directly related to the Object of the Act “Reducing the exposure of children to environmental tobacco smoke”.
NSW Health must revise its guideline for determining an enclosed public place so that the best-practice guideline for determining an unenclosed public place (outdoors) is a robust, health-based and scientific definition, similar to that provided by Cancer Council’s Allen & Clarke Report.
Protection from Second-hand Tobacco Smoke at Home
Smoking within the Home - In the matter of second-hand smoke in the home, nobody should smoke at home where children, frail aged or disabled people are present. In any instance of smoking where children are present, a smoker should be prosecuted for child abuse. Spanking a child is regarded as child abuse. Smoking near a child, with the possibility of triggering life-threatening conditions such as Sudden Infant Death Syndrome and asthma, must also be designated as child abuse. "Child abuse doesn't have to mean broken bones and black and blue marks.
Young growing tissues are far more vulnerable to carcinogens than those of adults. Knowingly subjecting children to respiratory tract diseases is child abuse." Dr William Kahan, Sloan Kettering Cancer Center, USA, 1993
Smoke drift and smoke seepage from neighbours These are growing health and social problems, calling for strong and positive support, assistance and legislation from Government.
Government should assist home-dwellers in protecting themselves and their families from second-hand smoke invasion from neighbours. Nobody should be forced to barricade themselves into their homes to protect themselves from neighbours' smoke. They have every right to expect clean water to flow from their taps -similarly they have every right to breathe clean, smoke-free air in their homes. People should only be allowed to smoke where their smoke does not affect others, indoors and outdoors.
Governments should support anyone who brings a complaint of invasion/assault from tobacco smoke from neighbours. We already have government protection from invasion/assault from excessive noise. The same should apply to the poisons in tobacco smoke.
Regarding Smoke Seepage.
"Tobacco smoke travels from its point of generation in a building to all other areas of the building. It has been shown to move through light fixtures, through ceiling crawl spaces, and into and out of doorways. Once exposed, building occupants are at risk for the irritant, allergic and acute and chronic cardiopulmonary and carcinogenic adverse health effects which are known to be associated with environmental tobacco smoke (ETS) exposure", California Chief of Occupational Health and Safety, 1993.
Researchers Winickoff, Gottlieb and Mello in a recent article in New England Journal of Medicine (NEJM) dated 17 June 2010, have advised the USA government that, due to the nature of smoke seepage, and also, in order to protect the most vulnerable members of the community, multi-unit Public Housing should be declared smoke-free. We call on NSW Public Housing to declare all multi-unit housing complexes smoke-free, especially to protect all children, disabled and frail-aged residents from the potentially deadly effects of smoke-seepage within buildings. Smokers have the option to move well away from the building or to use alternative (non-tobacco) methods of nicotine delivery.
Unit- dwellers, realtors, landlords, tenants, Strata Managers and all who live or work around multi-unit housing must be informed of the nature, dangers, and capabilities of second-hand smoke and how it can invade and seep into homes, causing grave damage to health and a high degree of stress.
Tobacco Advertising and Signage
Tobacco-Control Signage advertising Smoke-free Public Areas Recent legislation introducing smoke-free public transport waiting areas and smoke-free entrances/exits to public buildings was most welcome, especially as children tend to travel by public transport extensively. However, the new regulations were sparsely publicised and, disappointingly, not sign-posted to the extent that smokers continue to flout the regulations and feign ignorance of the restrictions.
Large signage regarding Testing for AIDS has since been placed on bus stops around the city area – why could NSW Health not have done the same for the first six months since smoke-free bus-stops was introduced on 7th January? A “blitz” by uniformed police much later this year would not have been called for if appropriate and timely signage had been provided to inform smokers as well as those whom the signs were to protect.
These devices are not as yet fully tested and their use should be banned especially near children.
Also, they are being used by smokers as a means of defiance against tobacco-control authorities as they resemble tobacco cigarettes. Such resemblance should make them subject to strict tobacco laws which forbid products which look like tobacco products. Children not allowed to enter Smoking-Allowed Areas This directly relates to the object of the Act, “reducing the exposure of children to environmental tobacco smoke”.
Any area which continues to allow smoking in public must be banned to children. Smoke-Free Zones for Children’s Protection:- NSW Government should bring forward smoke-free outdoor dining and drinking (with a health-based definition of outdoors), must lift the ridiculous exemption which continues to allow smoking on the stage, must declare 10 metre smoke-free zones around all schools and child-care areas, and should work with all Local Governments to bring about smoke-free Central Business Districts.
We are constantly reminded of the following statement from NSW Health:
There is no safe level of exposure to ETS (second-hand smoke).
So we call on you again, as our primary health legislation body, to accept responsibility for protecting every member of our community from the well-known poisons in second-hand smoke.
If you can smell tobacco smoke, then the poisons are going into your lungs and doing harm. Thoracic surgeon, NSW 2009
Tobacco products are unsafe, have no useful purpose and are universally harmful. The harm which they cause is totally preventable.
The NSW Government has a responsibility to protect those who cannot protect themselves. The majority of tobacco and smoking law reform has been driven by complaints from the loudest and strongest. Governments must look at the pressing need for those reforms in the past, and provide the same or stronger protection for those who cannot help themselves, namely: the unborn, infants and children, physically and intellectually disabled, frail-aged, prisoners, non-English speakers, in all aspects of their lives.
It is difficult to estimate the financial benefits of smoke-free policies except to say that such benefits will far outweigh the estimated costs of legislation, signage, monitoring and enforcement, as the impact will be long-term and far-reaching, viz. cleaner air, healthier community, less places for smoking and thus reduced smoking rates, less visibility of smoking, less stink and less cigarette butts and packets in streets, doorways, parks, beaches, waiting areas, and waterways.
Most people don't smoke and they greatly resent that their access to clean air outdoors is currently blatantly denied them by smokers. Smokers have become accustomed to restrictions and should only smoke in designated spaces.
Any adverse impact which may occur as a result of smoking bans must be regarded as a community cost of health reforms which will, in the short and long term, save lives, not only through lessened exposure to tobacco smoke but also through reduced smoking rates. No smoke-free reforms should ever be delayed in case of perceived adverse economic impact.
Duty of Care /Workplace Health and Safety
Proprietors and Governments are reminded that they owe a legal duty of care to clients, patrons and employees within their jurisdictions and premises. All are aware of the dangers and that there is no safe level of tobacco smoke. Any person/s who suffers due to exposure to the well-known toxins is entitled to sue those proprietors and/or governments for breach of that duty of care as well as for breach of workplace health and safety law which states that known dangers must be removed from the workplace.
Australia and NSW are party to the International Framework Convention on Tobacco Control (FCTC). Australia played a leading role in the negotiations and claims to be a strong supporter of the Convention. The second key obligation under the treaty commits our governments to the following action: Recognising that "scientific evidence has unequivocally established that exposure to tobacco smoke causes death, disease and disability", Governments shall take measures "providing protection from exposure to tobacco smoke in indoor workplaces, public transport, indoor public places, and, as appropriate, other public places."
Regarding this Review and the Smoking Rate Targets
We challenge that the targets are too conservative. We need to work with our Indigenous Health teams to help change the attitude of all indigenous Australians, from tobacco being socially acceptable to it being totally unacceptable, a product which has killed off far too many indigenous Australians and led to huge loss of family life and culture.
NSW Health Review’s targeted lower smoking rates for the next few years may seem realistic but are based on legislation which is far from rigorous. Our Government must fund tougher regulations, as suggested, and set tougher targets in order to save lives, save health dollars and ultimately use the expertise gained and funds saved in tobacco control to do battle against our other extremely serious health problems of alcoholism, obesity, mental illness, and disabilities.
Prepared by Margaret Hogge, President, NSMA Inc. December 2013.