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Monitoring Implementation of the Framework Convention > ARTICLE 8

Protection against passive smoking THE FRENCH EXPERIENCE

2008 REPORT

> PREFACE

T

The important medical, social and economic costs of tobacco dependancy provide the grounds for support of tobacco control by more than two-thirds of smokers who regret having become dependent and by four-fifths of the smoker and non-smoker population seeking protection from the health hazards linked to second-hand smoke.

For a long time, a tradition of tolerance with regard to tobacco consumption in public permitted this behavior to pass as common and harmless. The tobacco industry and its key intermediaries in France, cigarette vendors, aware of the threat to profits posed by the introduction of strong legislation for the protection against passive smoking, denied the medical consequences of second-hand smoke. They then proposed an approach which was meant to be consensual, for want of being effective. Finally, relying on the support of the deadly industry by a few stray and/or overly benevolent politicians and philosophers, they denounced the executive order (décret) as “liberticidal”. In 1991, France passed the Evin law, related to the consumption of alcohol and tobacco. The law’s tobacco provisions are particularly rigorous, particularly with respect to advertising. Unfortunately, whereas this law defined public places as smoker-free, an executive order signed in 1992 rendered initially contemplated measures for the protection from second-hand smoke ineffective. This setback resulted from the effective concerted action of cigarette manufacturers and vendors, sometimes tied to hotel-restaurant industry leaders, and from weak public policy arising from a ‘laxist’ and uncourageous approach to dealing with this risk. The work of the WHO, the evolu-

tion of medical knowledge, EU law, and French society, as well as the action of certain politicians and the intense coordinated lobbying efforts of NGOs involved in tobacco control led to the signature on November 15, 2006 of a new executive order. Though it does not completely prohibit smoking in certain public places, the executive order comes close to comprehensively banning it. The new measure was implemented with little resistance, particularly due to NGO efforts to prepare and support the measure and to find effective allies among hotel and restaurant professionals. However, protection against the risks related to exposure to second-hand smoke should not stop with this executive order. In addition to ensuring its rigorous implementation, other dimensions need to be taken into account: the future of terraces and other public places which are neither enclosed nor covered, consideration of a ban on smoking in private vehicles transporting children… This report describes the steps which led to the implementation of this public health measure. NGOs united within the Alliance contre le tabac played a central and effective role in the implementation of the executive order, thanks to the rapid professionalization of their staff during the past few years. As a result, France now has a number of tobacco control experts, though still too few by comparison with experts in other European countries where more professionals chose to direct their career path in this field and are available to share experience with foreign colleagues. Professor Yves Martinet, Président, Alliance contre le tabac, (Alliance Against Tobacco) September 29, 2008

ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Preface I 1

> SUMMARY Preface .......................................................................................................... 1 Introduction ................................................................................................. 4 Glossary ........................................................................................................ 6

PART I - Anti-smoking legislation in France: the Veil law, the Evin law, and the 15 November 2006 executive order .................... 11 A Early anti-smoking legislation efforts in France ............................... 11 1 - The Veil law of 9 July 1976 ............................................................. 11 2 - The Evin law of 10 January 1991 (French alcohol & tobacco policy law) ........................................... 13 B The 1992 Plan: a half measure ............................................................ 15 1 - Where the Evin law succeeded ...................................................... 15 2 - The weaknesses of the Evin law ..................................................... 19 C The executive order of 15 November 2006 ........................................ 44 1 - Contents of the executive order: obligations and responsibilities ...................................................... 24 2 - Further measures: memos and administrative orders .................. 26

PART II - Preparation for implementation of the measures ................. 27 A Mobilize public opinion ....................................................................... 27 1 - The Cancer Plan ............................................................................... 27 2 - Reports on passive smoking ............................................................ 29 3 - Communications campaigns ........................................................... 30 B Seek allies and work with key players ............................................... 31 1 - The government .............................................................................. 32 2 - Members of Parliament: the role of political leaders ................... 33 3 - Parliamentary mission ..................................................................... 34 4 - Support from government agencies and organizations .............. 35 5 - The Unions ....................................................................................... 36

2 I Summary I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

C Coordinate individual actions ............................................................ 39 1 - NGO projects as part of the Cancer Plan ....................................... 39 2 - Media campaigns by NGOs ............................................................. 39 D Thwart attacks by industry ................................................................. 42 1 - Lobbying efforts by restaurant owners, café owners and tobacco retailers ...................................................................... 42 2 - Arguments set forth in efforts to obtain exemptions from the ban ................................................................................... 42

PART III - What next? How to make the ban last ....................................................................... 45 A Assess and publicize the impact of the ban ....................................... 45 1 - Economic impact ............................................................................. 45 2 - Health effects .................................................................................. 46 B Remain vigilant against attempts to skirt the executive order ............................................................................. 49 1 - Private clubs .................................................................................... 49 2 - Hookah cafés (Cafés-chicha) ........................................................... 49 3 - Non-conforming smoking-rooms ................................................... 50 4 - Terraces ............................................................................................ 51 C Challenges ............................................................................................ 52 1 - Mobilize the inspectors .................................................................. 52 2 - Build on public opinion .................................................................. 53 Conclusion .................................................................................................. 55 The Alliance's presentation ....................................................................... 57 The Alliance's members ............................................................................. 58 Presentation of the co-authors ................................................................. 60

ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Summary I 3

> INTRODUCTION

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The First Conference of the Parties of the Framework Convention on Tobacco Control (FCTC), held in Geneva in February 2006, made the decision to give priority to the development of a certain number of articles, including Article 8 concerning protection against passive smoking. A working group composed of facilitator and partner countries was constituted to draft the guidelines for this article. A document resulting from the working group’s efforts was presented at the 2nd Conference of the Parties (COP 2) organized in Bangkok in 2007. It was very favorably received by the NGOs which found it coherent with the recommendations of civil society and their wishes for the adoption of guidelines. These guidelines were adopted by COP 2 without any modification. Thus, states that have ratified the FCTC have the obligation to apply said article by taking care to follow the guidelines thus defined. The guidelines are based on best practices and guide countries towards effective measures. They are to some extent a model of the regulation which each State must enact. However, the guidelines are not juridically “binding”: they direct towards restrictive legislation but do not imply that a State is obligated to apply them to the letter. Indeed, it has been shown that smoking prohibition is a process of national maturity and that it is effective only when it is brought about and discussed in national contexts. It is however in-

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teresting to note that the introduction of clear and effective measures in a country exerts an often decisive influence on the legislation of another culturally similar nation. The Alliance contre le tabac, a coalition of about thirty NGOs playing a part in tobacco control in metropolitan France, found it interesting, from the point of view of sharing experiences and expertise, to analyze the process that made it possible for a country like France to implement a smoking ban. This report is the result of this analysis. It is divided into three parts: a description of the various stages of the process of legislative implementation, a presentation of the roles played by the actors involved in the process (policy makers, tobacco control experts, civil society, trade-union organizations…), a presentation of the difficulties encountered (for example, industry interference), of successes achieved, and of challenges to be faced for successful implementation of the legislation.

amples or recommendations to be applied. At the national level, this report offers to French authorities and to the tobacco control community a status report on the implementation of Article 8 in the metropolitan territory (certain differences are to be noted for the group of overseas collectivities) and identifies challenges to be addressed regarding protection from second-hand smoke. It has been almost two years since the implementation of a new ban permitted eradication of tobacco smoke in the workplace and in public places. Coming just a few months after the implementation of these provisions in all restaurants, hotels, cafes, bars, casinos and discotheques, this report wishes to go beyond the standard political and medical assessment, thereby serving as a rich testimony of the efforts carried out by all those individuals who, concerned by the health of their fellow citizens, used all efforts to completely change a seemingly unchangeable situation.

The presentation of the French experience could prove particularly useful to our international partners, including countries considering adoption of more appropriate measures for the application of Article 8 of the FCTC on their territory, starting their process of prohibition, or trying to make their legislation more operational. The French experience could provide concrete ex-

ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Introduction I 5

> GLOSSARY ADP Aéroports de Paris is a French company that builds, develops and operates hub airports, including the two main airports in France, Paris-Orly airport and Paris-Charles-de-Gaulle. BAT British American Tobacco, based in London (United Kingdom), is one of the most important tobacco and cigarette producers in the world. CDIT The Tobacco Information and Documentation Center (Centre de Documentation et d'Information sur le Tabac), a sort of agency, was created in response to the Evin law. This organization included all the members of the tobacco profession, thereby permitting a global approach to the problem of tobacco consumption: the national federation of tobacco growers, the confederation of tobacco retailer unions, BAT, Philip Morris, RJ Reynolds Tobacco France, Rothman’s and Seita (Société Nationale d'Exploitation Industrielle des Tabacs et Allumettes). CHRDC Cafes, Hotels, Restaurants, Discotheques, Casinos. CNCT The National Committee Against Smoking (Comité National Contre le Tabagisme) is a French association dedicated to tobacco control. It was founded in 1868 as the Society Against Tobacco

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Abuse (Société contre l’abus du tabac) and adopted its current name on the occasion of its centennial in 1968. The committee was recognized by the French government as being of public utility in 1977. The key objectives of the CNCT are to « prevent smoking initiation, particularly among the very young; protect individuals exposed to second-hand smoke; fight against repeated abuses and violations of the law; and help smokers stop smoking. » COP The Conference of the Parties involved in the signature/ratification process of the Framework Convention on Tobacco Control (FCTC) (1st Conference held in 2006 in Geneva, 2nd Conference held in 2007 in Bangkok, 3rd Conference planned in Durban in November 2008). DGS Directorate-General of Health (Direction Générale de la Santé) reporting to the Ministry of Health. DNF (formerly LCFTP, Ligue Contre la Fumée du Tabac en Public – League Against Tobacco Smoking in Public) Droits des non-Fumeurs (Non-smokers’ Rights) is an association recognized by the French government as being of public utility and which has been involved for the past 30 years in the protection of non-smokers as well as the effective implementation of the Evin law. DNF defends and informs victims of second-hand smoke and motivates pub-

lic institutions to both improve upon the legislation as well as to have it respected. The association has 8 regional offices where local interlocutors inform and assist all persons wishing to obtain more information about the anti-smoking law. FCTC The Framework Convention on Tobacco Control (FCTC) was the first treaty adopted by the World Health Assembly, the highest decision-making body of the World Health Organization (WHO). Negociations began in October 1999 and concluded on March 1, 2003. The objective of the FCTC is to « protect present and future generations from the devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke. » The FCTC preamble recognizes the need for Parties to give priority to their right to protect public health, given the exceptionally harmful nature of tobacco products and the harm caused by the companies that manufacture them. Since 2003, the treaty has been signed by 168 countries and ratified by 160 (at the time we are publishing this report). FCTC - ARTICLE 5.3 In setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law.

ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Glossary I 7

FCTC - ARTICLE 8 1. Parties recognize that scientific evidence has unequivocally established that exposure to tobacco smoke causes death, disease and disability. 2. Each Party shall adopt and implement in areas of existing national jurisdiction as determined by national law and actively promote at other jurisdictional levels the adoption and implementation of effective legislative, executive, administrative and/or other measures, providing for protection from exposure to tobacco smoke in indoor workplaces, public transport, indoor public places and, as appropriate, other public places. IGAS Created in 1967, the General Inspectorate of Social Affairs (Inspection Générale des Affaires Sociales) is charged with a very broad mission covering social affairs, health, employment, solidarity, labor, urban policy, professional training and State modernization issues. The Inspectorate thus ensures “the control and assessment of the implementation of public policy pertaining to social security and welfare, health and social protection, labor, and professional training”. It also oversees NGOs that raise funds through public donations. INCa The French National Cancer Institute (L’Institut National du Cancer) is a health and science agency dedicated to cancerology. The agency operates in a interdisciplinary fashion, with the aim of federating, uniting and mobilizing players and resources around joint projects.

INPES The National Institute for Prevention and Health Education (Institut National de Prévention et d’Education pour la Santé) is a public establishment charged with implementing programs in matters of prevention and health education within the more general framework of French public health policy. INSEE The National Institute of Statistics and Economic Studies (Institut National de la Statistique et des Études Économiques) produces and analyzes official statistics. INSEE is a Directorate General of the French Ministry of the Economy, Finance, and Employment (Ministère de l'Économie, des Finances et de l'Emploi - MINEFE). As an institute, it has technical independence from the government. LNCC Created in 1918 by Justin Godart, the National League Against Cancer (La Ligue nationale contre le cancer, also known as La Ligue), is a private French foundation recognized by the French government as being of public utility. Its missions include cancer prevention and detection, help for cancer victims and financial support of public research in the field of cancer. The League is made up of 103 departmental committees governed by the 1901 law on associations and united as a federation with its national headquarters in the 13th arrondissement of Paris.

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MILDT The Interministerial Mission for the Fight against Drugs and Drug Addiction (La Mission Interministérielle de Lutte contre la Drogue et la Toxicomanie) is in charge of coordinating government action in the fields of prevention, health and social coverage, repression, training, communications, research and international exchange related to drugs and drug addiction. Its expertise extends to other addictions (alcoholism, smoking, consumption of psychotropic drugs).

mon guiding document, the SmokeFree Hospital Charter. Its main objective is to reduce smoking in hospitals.

NGO Nongovernmental Organization - Organisations Non Gouvernementales, also called associations in this report.

SNCF The French National Railway (La Société Nationale des Chemins de Fer) is one of the largest public French companies, focused on rail transport.

OFDT The French Monitoring Center for Drugs and Drug Addiction (L'Observatoire Français des Drogues et des Toxicomanies) is a public interest group created in 1993. Since 1999, OFDT monitoring efforts have focused on both legal and illegal psychoactive drugs. RATP The Paris Transport Authority (La Régie Autonome des Transports Parisiens) is a public company designated by the Île-de-France Transportation Union to manage the metro and other urban transportation systems of Paris and its outlying areas. RHST The Smoke-Free Hospital Network (Le Réseau Hôpital sans Tabac) unites health establishments around a com-

SFP Smoke Free Partnership is a European NGO partnership between Cancer Research UK, the European Respiratory Society, European Heart Network and INCa. It aims to promote research at the national level and in collaboration with other organizations to promote public health and strengthen a European network for improved tobacco control.

SYNHORCAT The National Union of Hotel, Restaurant, Café, and Catering Service Owners (Syndicat National des Hôteliers, Restaurateurs, Cafetiers et Traiteurs) is the result of a merger between the National Union of Restaurant, Café, and Hotel Owners (Syndicat National des Restaurateurs, Limonadiers et Hôteliers - SNRLH), the French Hotel Business Union (Syndicat Français de l’Hôtellerie - SFH), and the Professional Union of Skilled Chefs (l’Union Professionnelle des Artisans Cuisiniers - UPAC). TGI Le Tribunal de Grande Instance (District or County Court) is a court of first instance with jurisdiction over important civil matters.

ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Glossary I 9

TGV High Speed Train (Train à Grande Vitesse). An electric train built in France, capable of running at speeds ranging from 270-320 km/h in commercial use. The TGV is exclusively a passenger transport service. UMIH The French Union of Hotel Professions and Industries (Union des Métiers et des Industries de l'Hôtellerie) is a French hotel and restaurant employers’ organization. The ALTADIS group, a maker and distributor of tobacco products, was a partner of the Union until the end of 2007. WHO The World Health Organization (L’Organisation Mondiale de la Santé OMS), is a specialized agency of the United Nations. According to its constitution, WHO aims to bring all the people of the world to the highest possible level of health, with health being defined in this same document as a « state of complete physical, mental and social well-being, and not merely the absence of disease or illness. »

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> PART I Anti-smoking legislation in France: the Veil law, the Evin law, and the 15 November 2006 executive order Smoking or non smoking table?

tific progress related to knowledge of

Eight months after the entry into force

bacco smoke gradually made it possible

of the executive order of 15 November

to counter alarming established views

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2006, the traditional question asked of individuals upon their entry into a eating establishment has been relegated to the ranks of memories of the past. This report is a testimony to the general population’s massive support of the smoking ban in public places. Nevertheless, it took 30 years after the adoption of the Veil law to arrive to the enactment of the executive order of 15 November 2006 establishing a strict ban on smoking in public places.

the dangers of tobacco products and of the consequences of the exposure to to-

regarding public health. The social evolution which led to popular acceptance of the strict ban resulting from the most recent executive order is undoubtedly founded growing public awareness of the health hazards related to smoking.

> A] EARLY ANTI-SMOKING LEGISLATION EFFORTS IN FRANCE

A review of the contents of the succession of texts leading to this regulation shows precisely how the supremacy of the tobacco industry was built upon both scientific ignorance and a skillfully organized exploitation of loopholes in the legislative texts. Fortunately, scien-

1) The Veil law of 9 July 1976 In 1976, Mrs Simone Veil, Minister of Health in the Chirac government (under President Valery Giscard d'Estaing), introduced a bill which was adopted by the National Assembly in June 1976.

ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part I I 11

Voted on July 9, 1976, law n° 76-616 concerning measures to combat smoking is the first French legislative text with the ambitious aim of fighting against the smoking plague. It also regulates the use, packaging and advertising of tobacco products. Article 16 appears under Title II of the law. This article timidly assigns the task of establishing the smoking ban to regulatory authorities. Article 16: « Without prejudice to measures falling within police powers in the name of safety, peace or public health, executive orders by the Council of State shall determine the conditions under which smoking will be banned in public places where this practice can have dangerous consequences on health. In buildings or in vehicles where areas for smokers and non-smokers can be designated in a distinct manner, space reserved for the latter shall not be less than half of the total area. » An invitation to the government to become more involved with the issue of tobacco control, the law carves a breach in smokers’ commonly permitted freedom to consume tobacco everywhere. The law suggests that places accommodating smokers and non-smokers assign distinct areas to each group, thus marking the first appearance of smoker and non-smoker zones. The only requirement posed by legislators in 1976 lies in the specification that the areas reserved for non-smokers shall be greater or

equal in size to the area dedicated to smokers. Under the Barre government, the interministerial executive order of 17 September 1977 established a ban on smoking in certain places. The text provides specific measures relating to buildings and vehicles intended to accomodate youth under 16 years of age as well as healthcare establishments. Regardless of the target population, the ban aims to protect. The manner in which it is implemented and regulated clearly reveals the fragile foundation of the law in terms of scientific knowledge. This weakness is particularly evident with respect to health risks arising from pollution from tobacco smoke. First, ventilation standards in effect within closed buildings where smokers and non-smokers cohabitate are rather lenient. While the text recommends mechanical ventilation, it considers the presence of simple external openings sufficient for ventilation. It is interesting to note that the law of 10 January 1991 and its implementing executive order do not raise any of the ventilation standards laid out by the Veil law. In addition, other provisions underscore a certain scientific ignorance of the consequences of second-hand smoke. In primary and middle school buildings, banning of smoking only during times when pupils frequent the buildings is contrary to current recommendations. Moreover, on several instances, the text mentions an exception to the smoking ban on public transport, where smokers and non-smokers cohabitate. Indeed, a smokers’ zone can be put into place

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“provided that an effective device prevents the propagation of smoke”. This concept of an “effective device” assuring protection of the public health remains a myth. It reappears in the Evin law as well, though it is described using different terms. Today, when it comes to public health issues, the 1977 executive order seems almost contradictory. However, it should be recognized as the very first law that sought protection for the public. As such, it scattered the first grains of sand into the well-oiled wheels of an unscrupulous tobacco industry, which showed particular interest in scientific misguidance and misinformation.

2) The Evin law of 10 January 1991 (French alcohol & tobacco policy law) The law of 10 January 1991, named after Claude Evin, Minister for Social Affairs and Solidarity of the Rocard administration under President François Mitterrand, provided a thorough revision of every aspect of the Veil law. This law was particularly innovative as it concerned a ban on smoking in public places. Whereas in 1976 the legislature made a weak request to develop and implement a ban, in 1991, the legislature imposed the ban. Consequently, from 1991, the ban on smoking in public places in France changed from being against regulations to against the law. Article 16 of the law of 9 July 1976 was modified accordingly:

Article 16: « It is forbidden to smoke in all public places such as schools and public transport, unless an area has been reserved for smokers. An executive order will be issued by the Council of State setting out the conditions for implementation of the previous paragraph. » The implications of this principle are important: the ban is legal and general. It is no longer legal to smoke in areas that have not been reserved for this purpose; conditions for the creation and use of which shall be defined by regulatory authorities. The September 1977 executive order was therefore void and replaced by the executive order of 29 May 1992, which sets out the terms of implementation concerning the banning of smoking in public places as well as modifying the Public Health Code. As a guideline, regulatory authorities confirm that the smoking ban will apply to all covered and enclosed public places, including the workplace. In order to protect non-smokers, the ban will apply to all means of public transport, all school premises (public and private nurseries, primary and secondary schools), and all uncovered areas frequented by pupils for the duration of their presence (e.g. recreational areas). Article 2 of the executive order sets out the exception to the ban: it does not apply to areas made available to smokers and that are equipped with “effi-

ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part I I 13

cient” ventilation. This article also states that the implementation of the ban as well as the designation of smoking areas falls under the responsibility of the manager of the premises.

>

The final executive order states only that smoking areas should be sectioned off in order to protect non-smokers. What actually happened was that smoking was allowed everywhere but in the area where it was specifically forbidden: the ‘small’ smoke-free zones were often temporary set-ups in the least pleasant areas, frequently placed right next to the smoking zone. The penalty chapter lists two distinct offenses according to whether the offense is committed by the smoker or the Management of the premises. As such, a smoker who smokes in a nonsmoking area will incur a class 3 penalty (up to €450 (1) per offense). The Manager of the premises will incur a class 5 penalty (up to €1500 per offense) if it is apparent that: • Smoking areas do not comply with regulations, • Ventilation requirements are not respected, • The mandatory no-smoking sign is not on display.

Article 3 however, involves a concept that would eventually render ineffective any plans for the protection sought. It states that designated areas for smokers should either be specific or sectioned off (without indicating what type of sectioning would be necessary). During a reorganization of the Public Health Code, an accidental change in wording led the superior codification commission to delete all obligations to provide ventilation and aeration within the CHRDC sector (Cafés, Hotels, Restaurants, Discotheques and Casinos).

In the absence of violation checks by police, public Ministers and NGOs, who are allowed to file civil suits against anti-smoking law offenders under article L. 3512-1, implementation of the May 1992 executive order showed the provision was flawed and inefficient, giving rise to the 15 November 2006 reform.

(1) Until 31/12/1998, the French Franc was used. 1€ = 6,55957FF. 450€ = ~3000FF ; 1500€ = 10 000FF 14 I Part I I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

> B] THE 1992 PLAN: A HALF MEASURE 1) Where the Evin law succeeded The Evin law initiative was sparked in 1989 by an alarming epidemiological report that justified much needed legal intervention to fight against tobacco use (2). The January 1991 law not only focuses on protecting people from passive smoking, but also introduces five additional measures (3), which, in order to be efficient, must be enforced simultaneously. Because of this, when evaluating the effectiveness of the Evin law in relation to the smoking ban, one must consider the fact that the overall drop in tobacco consumption is a result of all of the concurrent measures (4). This law marked a real breakthrough for policies concerned with the struggle against addictions in France. Putting the non-smoker's rights before those of the smoker represented a considerable step forward in improving public health. One of the first victories of the Evin law is clear in the increased awareness of the French population with regard to the harmfulness of smoking to

both the smoker and the non-smoker. In fact, at the time, the only problem associated with smoking was a social problem due to the discomfort caused by tobacco smoke. Few national studies have been carried out using indicators to measure the effectiveness of the smoking ban. Nevertheless, assessment reports including the November 1999 Berger study (5) and the IGAS (General Inspectorate of Social Affairs) report in December 2005, together with NGO expertise demonstrate the varying nature of smoking ban compliance. aI Some smoke free zones Improvements have taken place in the following areas as a consequence of the Evin law and the 1992 executive order: > The Public Transport sector A comprehensive smoking ban was introduced in the subway (including platforms and communal areas), on buses, aircraft and suburban trains, including dining cars. After a progressive reduction in the number of smoking cars on national routes, trains became totally smoke-free in 2006. > In the workplace The situation was particularly inconsistent. According to the IGAS report

(2) Surveys carried out by the Caisse Nationale d’Assurance Maladie National - CNAM (Social Security Administration) and the Comité Français d’Education pour la Santé - CFES (French Committee for Education and Health), studies from SEITA - Société Nationale d'Exploitation Industrielle des Tabacs et Allumettes (the former French tobacco monopoly) (3) These five clauses are: limitations on advertising and sponsorship, improved consumer information, product offering supervision, protection of non-smokers and pricing policies (4) In 1999, the Evin law assessment report points strongly to a direct relationship between the price-hike policy and the reduction in tobacco consumption (a drop of 11% between 1992 and 1997) (5) ‘Le rapport d’évaluation de la loi Evin, 1999 : Avis favorable pour les mesures contre le tabagisme’ (‘The Evin law assessment report: judgment in favor of action against smoking’) ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part I I 15

in 2005, the 1992 executive order only achieved 60% compliance in private sector workplaces. In reality, this percentage seems very high, as the majority of places illegally authorized smoking in offices and open-plan areas. > The educational sector A survey carried out by the OFDT (The French Monitoring Center for Drugs & Drug Addictions) on educational premises between 2001 and 2002 demonstrated that the adults responsible for maintaining the law seemed to have a casual interpretation of the ban. Despite the fact that laws at the time totally forbade smoking within recreational areas, it was authorized in 85% of the establishments (2% of public middle schools and 20% of private middle schools). > The health sector In 2006, a study evaluating the implementation of the Evin law within health establishments was commissioned by France’s Directorate for Health (DGS). It demonstrated that university hospitals were more compliant than other sectors. 90% of these premises displayed no-smoking signs in the relevant areas, as opposed to smaller structures where only 44% of specialized hospital centers and 39% of local hospitals displayed the smoking-ban reminder, even though 700 out of over 3000 medical institutions in France had committed to uphold the law by joining the Smoke-Free Hospital Network (6) (Réseau Hôpital Sans Tabac; RHST).

>

> In bars, cafés and restaurants Unfortunately, some of these premises failed to comply with the law. Designated smoking zones were more often areas than rooms, nosmoking signs were missing (only 52% of smoking areas displayed them) and above all, the ventilation did not conform to regulations (7). The same conclusion was drawn by relevant NGOs, and their experience of the field showed this to be true of the majority of social meeting places until the new executive order was passed in 2006. bI The case law for the smoking ban The legislature wanted to give NGOs legal control by allowing them to invoke civil law in cases of violation. These improvements in case law cre-

(6) Member Association of the Alliance contre le tabac (7) The Evin law assessment highlights the limited and random nature of these investigations 16 I Part I I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

The first cases to be heard came following employee dismissals. Compliance with the provisions of the May 1992 law was never mentioned in the lawsuit complaints. The number of cases grew from 1998 onwards mainly because employees were demanding compliance with the law. A number of decisions linked to the smoking ban enabled the scope of the May 1992 law to be widened or more focused. Of particular note is a 1995 case where a Miss Ozeir sued the ex-employer of her sister, a non-smoker, who died from lung cancer. Although they found the medical records lacked the evidence necessary to link the smoking at her workplace with her death, the judges conceded that the employer was at fault and that passive smoking can be fatal (8).

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ated a progressive movement towards greater public protection. In reality, it was very difficult for a nonsmoker to invoke the 1992 law regarding the prohibition of smoking in public places. Until recently, case law had very little influence in the matter. Judges at the time were more focused on the method (no-smoking signs had to be displayed and smoking-areas defined) than the results (enforcing the ban and providing an area free from smoke pollution). Nevertheless, a great number of lessons were learned about the risks of passive smoking and the liability of employers and owners of public premises towards employees and consumers. It took a decision by the Supreme Court to change their behavior.

> Employer's "best-efforts" Within this context, two showcase decisions were handed down where NGOs (LCFTP – League against Smoking in Public Places, and the CNCT) won their cases against the French railway authorities (SNCF) concerning railway stations in Lyon (La Part-Dieu) and Paris (Gare de Lyon). Judges from the Tribunal de Grand Instance in Lyon found that the SNCF failed to give its customers the required information and warnings (9). This case was the first of its kind to go before a judge and all merit is due to the unrelenting pressure exerted by the NGOs on railway management (SNCF – national and RATP – Paris local) and national airport management (ADP – Paris airports), six years after the Evin law was passed.

(8) Excerpt from the Paris Tribunal de Grand Instance's (TGI) decision 1st Chapter. (Ozeir, CNCT, LCFTP - now known as the DNF, c/ B.F.O; 20/11/96) (9) Excerpt from Lyon Tribunal de Grand Instance's (TGI) decision, LCFTP - now known as the DNF, CNCT c/ SNCF; 21/01/97 ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part I I 17

> The conditions of the employee's ‘right to leave’ It should be noted that during the evolution of recent case law on the subject of passive smoking, a March 16, 2004, administrative order issued by the Court of Appeals (CA) in Rennes decided that an employee could invoke his/her ‘right to leave’ a dangerous situation (article L. 231-81 of the Labor Code) and that this right can be invoked when the employee is subjected to passive smoking. The Court decided that due to the "poisonous nature of tobacco smoke (…) a lethal and dangerous product because of its carcinogenic effects on both smokers and passive smokers" the employer "cannot force an employee (…) to work in a smoke-polluted atmosphere", furthermore, "an employee should not be reproached for refusing to work in these conditions, especially given that he/she is only asking for compliance with a public health law" (10). Therefore, an employee who invokes their ‘right to leave’ when put in a situation where serious danger is imminent due to the exposure to passive smoking is justified in doing so. > The toughening of workplace health and safety laws The June 29, 2005 decision of the Court of Cassation (the highest court in the French judiciary) toughened workplace health and safety rules, whereby the employer is obligated to

protect employees from harm caused by passive smoking. This ruling ensures that health and safety conditions for employees will be met within the workplace. This decision marked a breakthrough, as preventative measures were put in place to replace curative measures: because of this and the new health & safety obligations, the employer can no longer plead innocent unless it proves ‘force majeure’ (11). As a consequence of this case law, any employee exposed to smoking in the workplace can terminate their work contract without notice because their health is in danger. This is the equivalent to a dismissal without motive. This administrative order originated from policies discussed before the issuance of the Evin executive order which set out to increase protection from passive smoking in 2006. Other recent examples helped make legal advances concerning the smoking ban: • A June 15, 2006 administrative order from the Administrative Tribunal (TA) in Paris ordered the State Employer (the Sénat) to pay interest and damages due to its failure to comply with the rules and regulations surrounding the campaign against smoking (12). • On May 27, 2008 the Administrative Tribunal in Nancy handed down a major ruling against France Tele-

(10) Excerpts CA Rennes 5th Chapter. (Villeret, CNCT c/ SARL Le Damier, 16/03/04) (11) With reference to directive no. 89-391 of the Council of 12/06/1989 concerning the implementation of measures promoting an increase in health and safety in the workplace (12) TA Paris, 15/06/06 (DNF, S. c/ Sénat) 18 I Part I I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

com in the case of a civil servant whose chronic respiratory disorder was brought on by exposure to smoke within the workplace. France Telecom was forced to acknowledge in part that this was an occupational disease (and as such was subject to the administrative consequences) (13).

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2) The weaknesses of the Evin law aI Public opinion poorly managed A study carried out in 2002 (14) demonstrated that smokers played down the risks associated with tobacco smoking: second-hand smoke was not really perceived as a health hazard and despite recent legislation, the French were still not worried by its effects. Despite the fact that tobacco smoke was a minor annoyance, people would not change their behavior. Nevertheless, a survey carried out in 2001 (15) (10 years after the Evin law came into effect), shows that three out of four French people claimed to be hindered by second-hand smoke: over 60% of French people claimed to be inconvenienced by tobacco smoke in restaurants and bars; nearly 40% of the working population were inconvenienced by smoke in the workplace and over 50% of young people complained about tobacco at school (secondary schools and universities). In the same survey, more than one third of the French population admitted to not re-

other people’s smoke in smoke-free zones. Despite this and the smoking ban, smoking in a smoke-free zone continued to be ‘tolerated’ (around 15% of smokers admitted to smoking in smokefree zones). This level of acceptance showed an extremely tolerant attitude towards passive smoking. Between 1992 and 2006, the majority of smoking zones in the workplace and at restaurants were quite ‘virtual’ in nature, rarely delineated and with almost no signage. Smokers made the most of the failings in the law and continued to smoke after 1992 in places where the ban was not clearly enforced. Public opinon played a large role in the failure of the Evin law, it seemed that the ‘freedom to smoke’ superseded one’s right not to be smoked-out.

(13) TA Nancy, 27/05/08, K. c/ France Télécom AEGE (14) I. GREMY, S. HALFEN, Les connaissances, attitudes et perceptions des Franciliens à l’égard du tabac, Observatoire régional de santé d'Ile-de-France, (The French and their knowledge, attitude and perception of tobacco, Regional Health Authority in Ile-de-France), September 2002 (15) IPSOS enquiry for the DGS (French Health Authority), CNAM (equiv. social security) and the CFES (French health education authority), 27 and 28 April 2001, on a sample of 1015 people aged over 15, nationally ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part I I 19

bI An unreadable executive order Even though French Parliament (the French legislative institution) must vote in a new law, rules for its application remain subject to approval by executive powers. This was how, in May 1992, the government passed an executive order to qualify, complete, and facilitate the application of the Evin law. Unfortunately, the executive order introduced ideas and conditions which took from its overall impact and content. The main uncertainties in the 1992 executive order are as follows: > The executive order set out that smoking zones should be created « within designated no-smoking zones ». This introduced the notion that smoking was allowed even in places where it was forbidden. > The executive order also implied that the creation of these smoking zones was ‘obligatory’ and not simply optional. > The text set out a list of conditions to be met, forgetting the most fundamental (maximum area, positioning with regard to entrances, exits, communal areas and aeration & ventilation norms). If ever called to justice, it was incumbent upon the plaintiff to prove that conditions were not met and to build a case to sanction those not complying with the law. > Although signage should appear as a reminder of the smoking ban in public places, there is no indication of how it should look, what it should

say, how big it should be or where it should be placed. > The executive order allowed for great ‘flexibility’ in the designation of smoking areas within drinking and eating establishments. Owners of restaurants, bars and cafés were able to change the smoking-zones as they saw fit. Smokers were even allowed to move between one zone and the other as they pleased. Just as the notion of « ventilation measures » was open to interpretation, so too was the notion of « designated areas », according to which smoke will not leave a smoking-zone. This was destined to fail. Thus, the Evin law, rendered vague by an executive order, became totally ineffective. It was left open to incorrect interpretations with considerable consequences: > Company Directors, Restaurant Managers, Malls, Hair Salons, Hospitals and Schools, all avoided inplementing the law under the pretext of being unaware of their obligations or the resulting sanctions applicable due to non-compliance. As a consequence, despite the fact that 73% of French people aged between 15 and 75 in the majority of public places did not smoke, they were not given the choice of sitting in the more comfortable areas due to the fact that smoking areas tended to take up 2/3 of the premises. So, in 38% of restaurants, cafés and bars, non-smokers (16) had to sit in smoking zones.

(16) Survey carried out by TNS SOFRES (Figaro Magazine) for DNF (Non-smokers Rights), October 2004 20 I Part I I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

72% of premises were found not to display the legally required notice and moreover, 78% believed that the absence of a no-smoking sign meant that smoking was permitted. > The tobacco industry managed to infiltrate restaurant unions and give its interpretation of the law. Tobacco manufacturers succeeded in communicating an erroneous interpretation of the law to restaurant owners. This resulted in restaurant owners believing that in order to adhere to the Evin law; they simply had to designate a non-smoking area within smoke-tolerant premises. They also managed to instill a fear of loss of earnings should the law be complied with. cI A distinct lack of willingness to comply with this law The 1991 law asked NGOs to ensure compliance with the Evin law and to impose the law on behalf of the plaintiff. The law was worded in such a way as to get civil society committed to the fight against tobacco; however, in doing this, the authorities actually withdrew themselves from their role to control and sanction whilst simultaneously failing to empower NGOs to carry out their mission. Indeed, it is much more politically gratifying to play the wellmeaning arbitrator than the strict policeman. This is how political authorities, by refusing to carry out their chiefly duties, actually caused conflict between smokers and non-smokers.

> Police officers willing to enforce the smoking ban and punish offenders were rare: This mainly concerns judicial police. In fact, officials from the Ministries of Health and Labor were only mandated in 2004, following the passing of a new public health law (there were no guidelines to explain how this law should be enforced). Although it was clear that there was a smoking ban in France, it was not clear who was responsible for its implementation. > The system of sanctions was too complex and too difficult to enforce: Either 3rd or 5th (17) class penalties were due from offenders who broke the law. This type of sanction meant that enforcement officers were unable to demand on-the-spot penalties. In the best case scenario, a police officer took down a statement of the offense, which had to then be sent to the ‘Parquet’ (the French prosecution body responsible for processing offenses, who would then take it to court). The IGAS (French Authority for Social Affairs) report states that the Minister for Justice received an average of three such statements per year; these were mainly for non display of the smoking ban (18). Even though certain NGOs have the authority to apply the law, the investigations required to prove the offenses before a judge were arduous (absence of financial means and duration of process etc.).

(17) Cf. note 1 (18) IGAS report, The banning of smoking in public places in France, December 2005, page 38 ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part I I 21

> Great tolerance was shown towards offenses: The public Minister who had the task of referring all criminal offenses to the court on behalf of society and the common good for many years considered that proceedings undertaken by NGOs to ensure management complied with the smoking ban were a cause of personal conflict and not of interest to the general public or for the protection of public health. > Bad examples shown by public institutions and civil servants: The corridors of both the Lower House and the National Assembly continued to be shrouded in smoke, and this, despite having passed the law themselves, among parliamentarians. If ministries, state institutions, police stations, court rooms and hospitals continued to be filled with smoke, there was no point in waiting for the law to be enforced, or for any control to be exercised by those who were openly contesting the law. In some cases, Ministers went as far as issuing specific instructions preventing enforcement of the ban. The Minister of Labor sent a memo to his officers asking them to ensure that no reference to the Evin law appear within the internal rules of a company. Obviously, the Council of State declared this memo illegal, but it took until the new law was introduced in 2006 for the Minister of Labor to finally agree to the protection of employees.

dI The interference strategy led by the tobacco industry The extent to which the tobacco industry interfered in the enforcement of the Evin law, particularly in relation to the smoking ban, demonstrates just how much impact this was likely to have. The recognition of the fact that passive smoking engendered a lethal risk put paid to the fact that smokers and nonsmokers could live in harmony. The words ‘choice’ and ‘freedom’ were no longer valid when it came to smokers. This exposure to danger meant that authorities had to react and control tobacco consumption by banning it in public places. This led to bad press for tobacco smoking and greatly contributed to its antisocial image and, as a consequence, a decrease in consumption. The strategy of interference led by the tobacco industry involved the alteration of internationally-defined tactics for the local stage. > The tobacco industry reacted very quickly to the threat posed by the Evin law. The law was a coherent plan and jeopardized the interests of an industry concerned that other European countries might follow suit: higher taxes, a total ban on advertising and a ban on smoking in public places. From the summer of 1990, tobacco companies operating in the French market formed an alliance (19) in order to strengthen their lobbying and communication capabilities. They made the decision to form the CDIT (Tobacco Information and Documentation Center) and use it as an agency. In particular, a number of

(19) WIRZ Gérard, Restaurant accommodation, to Mary Pottorf, 29/08/1990, n° Bates 2024195648/5649 22 I Part I I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

Philip Morris (20) internal documents highlight the measures put in place to counter the effects of the plan and to minimize the consequences of the implementation of the law in hotels, restaurants and cafes (21). > During the development of the 1992 implementing executive order, the objective was to bring to the fore the traditional tobacco industry partners – the hotel and catering industry – in order to show a strong and growing opposition to an expansive interpretation of the act. In May 1991, Philip Morris commissioned a survey which aimed to show that the tobacco industry could rely on public support on the question of the hotel and catering industry – 62% of those questioned preferred the preservation of smoking and non-smoking zones (22). At that time, the media most likely to be affected by the advertising ban were particularly vocal – highlighting an encroachment on the civil liberties of the smoker, the threat of an overhygienic society, portraying the proEvin law campaigners as “Ayatollahs” and finally characterizing the act’s logic as an ineffective way of dealing with an issue of public courtesy (23). The Minister of Employment, fearful

of a turbulent ride from the unions, chose to stall for time (24). > In the end, the act approved by Dr. Bernard Kouchner, the Health Minister (particularly sensitive to tobacco industry causes), after fourteen months of deliberation, was heavily reworked and diluted compared to its original version (25). Throughout the 1990s, the tobacco industry’s main objective was to prevent any toughening of legislation or reinforcement of the implementation of laws already in place. France became, as part of a European and even global strategy, the object of a concentrated campaign of misinformation led by Philip Morris.

>

(20) Cf. in Preliminary three-year corporate communications plan, Philip Morris France, 1991, 19 pages, n° Bates 2500120306/0324 (21) WIRZ Gérard, Restaurant accommodation, to Mary Pottorf, 29 août 1990, n° Bates 2024195648/5649 (22) New attempt to enforce no-smoking legislation, internal documents Philip Morris, October 1991, n° Bates 2028391845/184 (23) LAVIELLE Gail, Next steps, fax to Gérard WIRZ, Burston Marsteller, 28/09/1990, n° Bates 2501453425/3426 (24) BOURSIER Jean-Pierre, Fire, An anti-tobacco decree that burns too much, Libération, 12/10/1991, n° Bates 2028391887/1888 (25) WIRZ Gérard, Finally ! French public smoking decree to be published, interne memorandum Philip Morris, 05/05/1992, n° Bates : 2028391516/1517 ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part I I 23

In the summer of 1995, the tobacco giant launched a campaign based on the “ghettoization” of smokers and the attacks on civil liberties led by European bureaucrats. “Pythagoras” and “Smoking Area” were two display advertisements published in European print media and in the major French dailies, Le Monde, Le Figaro, Libération etc (26). A second campaign was launched in 1996, again aimed at France’s decision makers and other influential leaders. Intimating that it was based on solid scientific study, the campaign questioned the risks posed by passive smoking. Eight different display advertisements were designed in order to minimize, and even ridicule, the risks of passive smoking by falsely comparing the absorption of a glass of water or milk to eating a cake or seasoning a dish. One of the images directly targeted the workplace with its strap line: “There are enough problems in the workplace without making tobacco another one (27).” Condemned by the French legal system (28), these campaigns of misinformation and scientific denial achieved their covert goal – to make believe that passive smoking was not a health risk, but more a minor nuisance or a lack of tolerance towards smokers. They even led to the postponement of effective passive smoke protection measures. The interference by the tobacco industry and its allies in the implementation of France’s first anti-smoking legislation underlined the necessity for government and public authorities to guard

against their lobbying activities whilst using the rigorous methods outlined in article 5.3 of the FCTC (Framework Convention on Tobacco Control).

> C] THE EXECUTIVE ORDER OF 15 NOVEMBER 2006 On November 15, 2006, the Villepin administration passed executive order No. 2006-1386 which detailed the new conditions of implementation of the smoking ban. This superseded the measures put in place by the Evin law in 1992.

1) Contents of the executive order: obligations and responsibilities The Health Minister, Xavier Bertrand, included the conclusions drawn up by the parliamentary mission when drafting the anti-tobacco executive order. The government also drafted a paper which dispelled any uncertainties regarding difficulties in implementing the law. As a result, but with no objective reason, the content of the executive order foresaw a two-stage implementation process: > As from February 1st 2007, smoking was forbidden in all public places and workplaces, enclosed and covered areas, health premises, public transport and all educational premises (primary, middle and high

(26) Observatoire des Publicités du Tabac (Tobacco Ad Observatory), 1995 statement, CNCT, March 1996 (27) Observatoire des Publicités du Tabac (Tobacco Ad Observatory), 1996 statement, CNCT, March 1997 (28) Cf CNCT c/ Philip Morris, Appeal Court of Paris, 20/03/1998 24 I Part I I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

schools, both private and public, including all outdoor areas such as recreational areas), as well as all premises used to gather, train or accommodate minors. Smoking areas can be provided everywhere except health premises and premises for use by minors, but would be subject to draconian conditions.

>

> It wasn’t until January 1st 2008, a year later, that these measures were put into practice in places where drinks were available for immediate consumption, such as hotels, restaurants, tobacco shops, casinos, game rooms and nightclubs, unless management decided to designate a smoking area within the establishment (not obligatory).

To facilitate ease of access to information on this executive order, the Minister for Health posted it on line: www.tabac.gouv.fr. Herein can be found explanations of the various passages (executive orders and memos), as well as the reasons for implementing this executive order; its objectives with regard to public health and an implementation timetable.

> Phase 2 of the Implementation of the 15 November 2006 smoking ban

ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part I I 25

2) Further measures: memos and administrative orders At the end of 2006, after publication of the executive order, a set of memoranda (29) were circulated by various government Ministers in order to facilitate comprehension and implementation of the new no-smoking law. Although these texts hold no legal value, they are very useful when it comes to understanding the scope of the main issues covered by this executive order.

>

In addition to the ban and by way of assisting smokers wishing to stop, the government decided to launch an extensive help programme. Firstly, the number of smoking cessation clinics was doubled (going from 500 in 2006 to more than 1000 by the end of 2007); then there was a rise in the number of free access group consultations. The legal plan also offered to pay a portion of medical follow-up expenses (maximum of €50 per year reimbursed by social security) to each smoker seeking professional help. This aid gives patients access to medication which helps them to stop smoking, such as nicotine replacement therapies (NRT). In doing this, the government aimed to help up to 1,2 million smokers.

(29) Memo from the Health Minister on 29/11/2006, relating to the banning of smoking in public places; Memo from the Minister of Public Enterprise on 27/11/2006 relating to conditions of implementation within state service buildings and public premises 26 I Part I I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

> PART II Preparation for implementation of the measures The signing and subsequent ratification, of the Framework Convention on Tobacco Control (FCTC) by the WHO in October 2004 gave the prevention of passive smoking an international legal framework. The FCTC requires Parties to the treaty to put effective measures in place to guarantee the protection of anyone at risk of being exposed to passive smoking, in particular whilst they are at work. In France, there was a pressing need to prepare for a change in the law. In order to do this, public opinion had to be mobilized and political decision makers involved.

> A] MOBILIZE PUBLIC OPINION 1) The Cancer Plan The war on cancer was declared a national cause in 2003 by French President Jacques Chirac (30). The national action plan against cancer was a five-year strategic program made up of six operational phases and priorities for comple- tion by 2007: prevent, diagnose, treat, counsel, teach, understand and discover. The overall objective of the plan was to reduce deaths caused by cancer by 20%. Toward this end, 9 measures were proposed to “declare war on tobacco” including actions to encourage people to stop smoking and to wean them off tobacco (especially young people and pregnant women), significant price increases for tobacco products, and the effective application of a smoking ban in public places and on school premises. Targets were set to reduce smoking in young people by 30% and adults by 20%.

(30) Presidential speech of 24/3/2003 ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part II I 27

THE NINE ANTI-SMOKING MEASURES, FROM THE 70 MEASURES SET OUT IN THE CANCER PLAN • Make access to tobacco increasingly difficult; • Require individuals to comply with no smoking rules in public areas; • Implement ‘Smoke-free school’ campaigns; • Enforce laws banning tobacco advertising; • Mobilize NGOs in the fight against tobacco; • Implement voluntary health education activities to help people give up smoking; • Fight against smoking by pregnant women; • Finance campaigns for the general public and establish ‘charters of good conduct’ with youth-aimed media; • Use revenue from increased taxes to finance cancer prevention and treatment.

In order to prevent passive smoking, the French government implemented a global plan which was made up of 4 broad measures:

et Sociale (DDASS - the County Directorates for Health and Social Care); > Strenghtened means of regulatory enforcement in accordance with the law of 9 August 2004 relating to public health policy. This law gave authority to new agents (public health inspector-physicians, public health specialists, health and social care inspectors and work inspectors) to report those not complying with the regulations (31); > The ‘Mission Interministérielle de Lutte contre la Drogue et la Toxicomanie’ – MILDT (The Interministerial Mission for the Fight against Drugs and Drug Addiction) was charged with improving implementation of the Evin Law by facilitating mobilization of the different bodies involved, in particular the national education system. It was also responsible for finding the means to harmonize efforts by the various stakeholders involved (businesses, professional organizations, NGOs...); > The State’s determination to make people comply with the Evin law and its implementing executive orders was demonstrated by a significant rise in funding (from 0.3 to 7 million euros in 4 years) for NGOs involved in tobacco control.

> An inspection program targeting catering establishments (cafés, bars, restaurants) in all French ‘départements’ (counties) via the ‘Directions Départementales d’Action Sanitaire

(31) See list of new agents, 2004 Public Health Law 28 I Part II I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

2) Reports on passive smoking In his speech, President Chirac confirmed that smoking is the main avoidable cause of cancer and that it should be fought against with great vigor. Six years earlier, Professor Maurice Tubiana (32) presented his concerns, conclusions and recommendations on the health consequences of passive smoking (33) at an Académie Nationale de Médecine (National Academy of Medicine) meeting. On World No Tobacco Day 2001, a working group lead by Professor Dautzenberg, published a report (34) on passive smoking. This report, written at the request of the DGS, analyzed a wide range of scientific data available on the risks linked to exposure to tobacco smoke and presented proposals and recommendations designed to protect the health of non-smokers. The report confirmed that there was a risk (35) of certain pathologies linked to exposure to tobacco smoke. It also proved that passive smoking affects everyone, regardless of age or health status, as tobacco smoke can provoke or aggravate illnesses that become fatal in some cases.

up by the Alliance contre le tabac. This group was asked to gather and review the passive smoking literature to establish a series of recommendations for a strategy to improve the legal framework for protecting individuals from tobacco smoke (similar to the work of Professor Dautzenberg’s group in 2001). The Alliance contre le tabac made recommendations to policy makers that were published in March 2005. The report provides the most pertinent knowledge and information available about passive smoking (36).

>

In addition, at the end of 2004, a ‘Passive Smoking’ working group was set (32) Honorary President of the Alliance contre le tabac, May 6, 1997 speech (33) Excerpts from the Bulletin de l’Academie Nationale de médecine (National Academy of Medicine), 1997, 181, n° 4 and 5, sessions held 29/04 and 06/05/1997 (34) www.ladocumentationfrancaise.fr/rapports-publics/014000432/synth.html (35) +72 % lower respiratory infections in children whose mothers smoke; + 48 % recurring otitis in children with smoking parents; twofold increase in the risk of sudden infant death syndrome (36) www.alliancecontreletabac.fr/ewb_pages/f/fiches-thematiques-177.php ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part II I 29

3) Communications campaigns aI Work done by INPES (L’Institut National de Prévention et d’Education pour la Santé - National Institute for Health Education and Promotion) INPES is recognized for its expertise in the field of health promotion. The work done by this Institute is organized in harmony with the Ministry of Health’s public health programs. Thus, when the Cancer Plan was implemented, this organization was naturally assigned the role of developing radio, TV and internet campaigns with several objectives: to denounce the manipulations of the tobacco industry, to help “denormalize” tobacco, to increase public understanding of the risks from active and passive smoking, and to provide ways to help people stop smoking. The INPES has worked closely for many years with NGOs. Its expertise in effective communication and prevention was consolidated through close coordination with its partners working on other aspects of tobacco control (economic, legal and social). A national campaign for the general public was launched following the implementation of the Cancer Plan in 2003. The 2004 campaign (rebroadcast in 2006) explained the reality of secondhand smoke, confronting smokers with the consequences of their cigarette consumption on the people around them. Two television ads from this campaign illustrated the number of cigarettes inhaled by two young non-smoking

children, living in a smoke-filled environment. From the powerful slogan ‘When you smoke next to non-smokers, they smoke too’, non-smokers realized that their exposure to smoke had nothing innocent about it. This campaign marked a turning point in public opinion: changes in the law to protect people against smoking in public places had become imperative. Once the new executive order banning smoking was promulgated, INPES aimed to consolidate public support of the imminent measure by launching a campaign based on a contrast between past and present. The campaign emphasized the fact that thirty years ago, smokers and non-smokers were unware of the risks linked to tobacco consumption and exposure to second-hand smoke but that today, on the eve of the smoking ban, this was no longer the case. Indeed, the scientific evidence is widely understood by today’s public, thereby making situations portrayed in the campaign difficult to accept: a man smoking in the same office as his non-smoking colleague, parents smoking in their car in the presence of their children. The impact of this campaign was assessed after its broadcast: more than 2/3 smokers said they were motivated to pay more attention to non-smokers and to make efforts not to smoke in their company (37). bI Opinion Polls and Press Releases from the Alliance contre le tabac For the Alliance, consensus of the French population was necessary for

(37) Survey carried out by BVA Institute for INPES, December 2006 30 I Part II I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

“denormalization” of tobacco to be effective. The Alliance therefore put a 5year strategy into place in order to align the majority of public opinion behind the demand for a ban. In 2004 (38), in order to demonstrate public support for nonsmoking workplaces and public areas, the Alliance contre le tabac commissioned and published the results of an opinion poll about the smoking ban. This survey showed clearly that 84% of persons surveyed were in favor of the idea of a comprehensive ban on smoking in public spaces. However, 59% believed the law was respected in restaurants and 61% were convinced that the law was respected in businesses. Most interestingly, the survey also showed that if a comprehensive smoking ban were to be put in place in France, the number of people going to cafés would go up by 10%, and by nearly 18% for restaurants and 4% for discothèques. The number of people who said that they would stop going to these places if a smoking ban was introduced was a lot lower than the number of people who said they would be more likely to spend time in them. The Alliance thus oriented its message around this change in trend, showing that the French were in favor of smokefree public places. The “change in trend” message helped the SNCF (Société Nationale de Chemins de Fers - French National Railways) when it was required to announce that all TGVs (Train à Grande Vitesse - high

speed long distance trains) would become completely non-smoking, as more than 86% of French people refused to buy tickets in smoking compartments. Between 2002 and 2004, support for the controversial “Smoke-Free TGV” decision shifted from 30% to 61%.

> B] SEEK ALLIES AND WORK WITH KEY PLAYERS Preparatory work to implement the measures was based on successful implementation in other countries and lessons learned from the implementation failure of the of the first French regulations. Public support was of critical importance and was driven by the majority of the media (who were now more independent of pressure from the tobacco companies because of the ban on tobacco advertising). Implementation efforts included: immediate work with all the relevant players to make the ban on smoking completely effective, and prevention of any impact from the tobacco industry’s interference strategy. As early as May and June 2005, within the framework of the presidential Cancer Plan (39), two NGOs (40) were commissioned by the Ministry of Health to reinforce protection of the public from passive smoking. They started hearings with representatives of the authorities responsible for applying the regulations: heads of employees’ unions; employers and representatives of the sensitive

(38) TNS SOFRES Survey, 06/10/2004 (39) www.tabac-info.net/NAVBAR/ACCUEIL/frame.mpi?lnk=rapportcancer.htm&IDM=1_7_ (40) The CNCT (Le Comité National Contre le Tabagisme / National Committee Against Smoking) in partnership with the LNCC (La Ligue nationale contre le cancer) ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part II I 31

hotel and catering sector (41). These hearings were part of an approach designed to show that the problem was no longer about ‘if’ a certain regulation to ban smoking should be put in place, but ‘when’ and ‘how’ to best implement it. In practical terms, the preparation for implementation required close collaboration with many different players: each one taking part in their own essential way.

1) The government The French government’s position, regarding the regulations to ban smoking in the workplace and in public areas, evolved between the beginning of the public opinion debate in 2004 and the adoption of the regulations in November 2006. Apart from the Health Minister, other government members, notably the Prime Minister, had not fundamentally integrated the fact that this strong demand came from all political parties, from nearly 80% of the population, and was strongly backed up by the media which did not hesitate to question them regularly about the measures. The position of tobacco retailers and the tobacco industry, advocating simply the application of existing regulations, was still the same. It was in 2005 that the Health Minister

commissioned the report on the application of the Evin law from IGAS (Inspection Générale des Affaires Sociales - General Inspectorate of Social Affairs). The report analyzed potential scenarios for modifying the law. It was only under pressure from the NGOs that the new Health Minister Xavier Bertrand decided to publish the report. Having received representatives from anti-smoking NGOs on several occasions, the Minister became very involved in and committed to the development and preparation of the 15 November 2006 executive order. His influence was not limited to his responsibilities as Minister of Health. Under the Sarkozy government (2007) he was named Ministre du travail, des relations sociales et de la solidarité (Minister of Labor, Industrial Relations and Solidarity). He gave his support for the final plan on several occasions so that nothing would block implementation, particularly in hotel, restaurant and catering sector establishments for which an implementation grace period of one year had been granted. Xavier Bertrand was strongly attacked by the tobacco industry and tobacco retailers. Along with Member of Parliament Yves Bur, Xavier Bertrand has symbolized the new thinking. This commitment to the anti-smoking cause won him the election in the June 2007: he was re-elected Member of Parliament for the second constituency of the Aisne département in the first round, earning more than 53% of the votes (42).

(41) Interviews with the hotel, catering and tobacco retailers unions: the UMIH, the SYNHORCAT, the Confédération des Professionnels de l’Industrie Hôtelière (CPIH - Confederation of Hotel Industry Professionals), the Fédération Autonome Générale de l’Industrie Hôtelière et Touristique (FAGIHT Independent General Federation for the Hotel and Tourism Industry), the Confédération Nationale des Débitants de Tabac (CNDT - National Confederation of Tobacco Retailers)... (42) When questioned on 14/11/2006 on the long-term electoral consequences of the introduction of a ban on smoking in the workplace and public places, Xavier Bertrand replied: « There are things that are far more important than the elections – the health of the general public » 32 I Part II I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

2) Members of Parliament: the role of political leaders The committed, active involvement of a member of the parliamentary majority, the Vice President of the Assemblée nationale (National Assembly), was essential for political success. Yves Bur had announced that he was in favor of a very clear and complete ban on smoking in the workplace and in public places. In the summer of 2005, Yves Bur publicly declared his commitment to the implementation of a smoking ban. In November 2005, strengthened by this declaration which was widely and frequently transmitted by the national media, he organized a debate in the National Assembly about the issues surrounding a ban (43) and introduced a legislative bill pertaining to the ban. Yves Bur thus became the political spokesperson in favor of the ban, carefully building links between parliamentarians and government initiatives on the matter. The tobacco industry viciously attacked Yves Bur via its intermediaries, tobacco retailers, and greatly stigmatized his influence on the implementation of the smoking ban (44). Nevertheless, and in spite of the threats the industry made

against election candidates (45), this courageous commitment by a member of parliament and his colleagues was welcomed by voters (46).

3) Parliamentary mission Members of Parliament were also involved through the very first parliamentary mission on tobacco in France. The mission was made up of 30 members (47), chaired by ex-health Minister Claude Evin (see Part I), and met from May to September 2006. Arguments made for and against the smoking ban underline how far beyond the traditional left-right division between political parties the smoking ban and public health issue extended: Claude Evin is a socialist, Yves Bur and Pierre Morange are parliamentarians from the right. > The ‘high risk’ composition of the parliamentary mission Many parliamentarians, with ties to the tobacco retailer and manufacturer lobby groups, tried to be appointed to the mission. There was a high risk that the final recommendations would lead to ineffective provisions. Similar efforts were deployed by health sector players to raise full awareness of what was at stake, so that they too could become members of the mission.

(43) Assemblée nationale (National Assembly) , 02/11/2005 – Bill n° 2591, introduced 13/10/2005 (44) www.buralistesidf.fr/index.php?option=com_content&task=view&id=279&Itemid=39 (45) Losange (government record), June 2007 – see 2006 letter to parliamentarians from Yves Trévilly, BAT lobbyist (46) Elections législatives : à droite comme à gauche, l’engagement pour l’intérêt général et la santé publique s’est avéré payant (Parliamentary elections: for both the right and the left, commitment to the general good and to public health proved to be rewarding), www.cnct.fr (47) Rapport n° 3353 Assemblée nationale, rapport fait au nom de la mission d’information sur l’interdiction de fumer dans les lieux publics, www.assemblee-nationale.fr/12/rap-info/i3353.asp ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part II I 33

The parliamentary mission brought together not only members of parliament but also civil servants, NGOs involved in tobacco control, hotel and catering industry professionals, tobacco retailers and one representative for the entire tobacco manufacturing industry (except for Philip Morris (48)). Tobacco industry representation on the mission raised many objections; some believed the industry did not belong on this parliamentary mission. However, in the absence of specific rules and guidelines linked to article 5.3 of the Framework Convention on Tobacco Control, and in spite of pressure from NGOs, the industry representative remained on the mission. Concerned about the dangers the presence of the tobacco industry could create at the negotiating table, the NGOs asked that the hearings be opened to journalists, thereby revealing to the public the ties between the experts invited by the mission and the tobacco industry. This is how Yves Martinet, President of the CNCT, publicly revealed to mission members the ties between an eminent constitutionalist, Guy Carcassonne and tobacco manufacturers. Carcassonne had warned members that “a ban founded on the grounds of protecting health should not trump individual rights (49).” > How the mission worked and what it achieved The parliamentary fact-finding mission operated in a fairly unusual way. Instead of starting with hearings, the members chose to bring together key

players from the sector to debate different points of view using a structure of themed roundtable discussions. The work carried out by the parliamentary mission focused on the study of the regulations in force which seemed out-of-date and inappropriate. The guiding principles of the needed reform emphasized certain fundamentals, including the need to protect all persons at work without exception For opposite reasons, the tobacco industry, tobacco retailers and the majority of health NGOs recommended legislative action as the means of implementing a smoking ban. Healthcare representatives thought it was the only way of reaching a complete ban including elimination of all smoking areas and appointing additional inspection bodies. Tobacco retailer and industry representatives, strengthened by their clout and influence on the parliamentary pro-tobacco network, saw legislation as an opportunity to empty the ban of any real substance. In its conclusions, the mission recommended a comprehensive ban on smoking via legislative action, specifying that “the reasoning which emerges from the Mission’s work favors a legislative solution which, alone, provides the necessary solemnity for a comprehensive ban on smoking in workplaces and places designated for public use, that is to say without any possibility of organizing smoking areas of any sort.” However,

(48) www.assemblee-nationale.fr/12/rap-info/i3353.asp (49) Id 21/06/2006 Roundtable 34 I Part II I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

the “success of the legislative route seemed unpredictable and, given the urgent and vital nature of the ban,” the members of the mission recommended that their conclusions serve as a ‘framework letter’ from which the government could draft a executive order (rather than a law) in the Conseil d’Etat (Council of State).

4) Support from government agencies and organizations aI IGAS - Inspection Générale des Affaires Sociales (General Inspectorate of Social Affairs) On July 29, 2005, the Minister of Health asked IGAS to write a report (50) on “the requirements for implementing a comprehensive ban on smoking in public spaces and, in particular, in the workplace”. Bernadette Roussille, the appointed inspector general, consequently held hearings with a wide range of people from the sector, including NGOs. To do this, she set up a large interministerial steering committee (51). This joint effort helped increase different government bodies’ awareness of the issues surrounding the ban and remove a certain number of obstacles. Submitted in December 2005, the IGAS report concluded with these terms: “Public opinion, changes in national law as well as examples from other countries together call for action from government to establish non-smokers’

rights that are in line with the scientific evidence of the risks of passive smoking (…) If a ban is implemented, it should be clear and equal for everyone: only a comprehensive ban on smoking–without smoking areas in public areas or workplaces, with the exclusion of people’s homes and other living places, is coherent with health protection objectives. In addition, only a ban prepared and managed with a strong, combined push from government agencies and their social and association partners has a chance of not becoming a dead letter law, and of drawing a close following and a growing involvement from the population, as has been the case in neighboring countries”. bI DGS - Direction Générale de la Santé (Directorate-General of Health) The Directorate-General of Health (DGS), and more specifically the Office of Addictive Practices, had a triple role: > Give financial support to NGOs involved in tobacco control, enabling them to make progress concerning protection of people from passive smoking. This support was reinforced during preparation and entry into force of the ban on smoking; > Serve as public spokespersons for other government agencies, justifying the ban and enhancing public awareness of the measure; > Offer technical assistance and expertise to political decision makers.

(50) IGAS, L’interdiction de fumer dans les lieux accueillant du public en France, (The ban on smoking in public places in France), December 2005 (51) This Steering Committee included: MILDT; the Ministries of Health and Solidarity; Labor; Education; Transport, Infrastructure and Tourism, Economy, Finance, and Industry), as well as INCa and INPES ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part II I 35

This collaboration started before and continued after the adoption of the executive order, thereby ensuring its successful implementation. The DGS was particularly active in preparing texts, training persons in charge of the public inquiry phone line, and training various inspection bodies. It also actively participated in the technical working group in charge of implementing the ban in social establishments. cI INCa - Institut National du Cancer (The National Cancer Institute) INCa also led an important movement in favor of the ban, offering its commitment to monitoring implementation of the FCTC in France as well as its expertise to political decision makers. This know-how was enriched with outside expertise, notably through the European Smoke Free Partnership (SFP). In these efforts to provide expertise to inform and support political decision making, INCa carried out and/or contributed to studies on the importance of smoke particles, more specifically:

> Presenting a health risk study (53) to the parliamentary mission, and participating in a study on mortality associated with passive smoking in Europe (54); > Studying the economic impact of the ban (55). INCa also contributed financially to the distribution of essential documents at the time the ban entered into force (56). It is important to emphasize the high level of cooperation between the various health NGOs and also between the different government agencies during the parliamentary mission. This cohesion was reinforced by the participation of some responsible unions and helped change the position of partners initially opposed to the ban. It also marginalized the tobacco industry and its representatives (who expressed their point of view less and less frequently during the course of the parliamentary mission, focusing instead on lobbying in private and negotiating financial compensation for their losses).

4) The Unions > Showing the high levels of pollution in smoking establishments, notably in the hotel, restaurant and catering sector to prevent attacks against the ban (52);

Relationships were built with representatives from the employees’ unions. The risks associated with passive smoking were made more explicit. The ban was

(52) Study by Rosswell Park Institute, USA in cooperation with the Rosswell International Cancer Research Center (53) www.assemblee-nationale.fr/12/rap-info/i3353.asp (54) JAMROZICK K. An estimate of deaths attributable to passive smoking in Europe. In Lifting the smokescreen: 10 reasons for a smoke free Europe. INCa/CRUK/ERS/EHN.2006 (55) Report on the economic aspects of smoke free policies, Smoke Free Partnership, May 2005 (56) DGS and INCa jointly financed an information pack for the hotel, restaurant and catering sector, “Sortez du brouillard” (“Come out of the fog”) 36 I Part II I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

presented as a measure to protect employees and as an integral part of their work conditions. Indeed, throughout the debate, one of the key arguments made by health NGOs was that the ban protected employees, managers and owners, not just clients. The tactic adopted by the NGOs was to show that the smoking ban guaranteed health protection for all from second-hand smoke. A ban would also provide legal security for managers. It would also establish an economic opportunity, based particularly on the Italian and Irish experiences, to relaunch the hotel, restaurant and catering sector. The employees’ unions, fundamentally hostile to a two-tiered social law, committed themselves to oppose a plan advocated by tobacco manufacturers, namely, to add a clause to employment contracts stating that the employee would be working in a smoking environment (57). The Café-Hotel-Restaurant-DiscothequeCasino (CHRDC) unions were considered from the onset as inescapable partners in this debate. CHRDCs are not only workplaces, they are also emblematic of the degree of protection/exposure to passive smoking for each individual. Once the subject was broached, representatives from the hotel, restaurant and catering industry put forward nuances and even diverging views about the proposed measure.

The largest union in terms of membership, UMIH, and many small unions expressed virulent hostility to any change in the law. At the same time, there were individuals at the heart of these unions who had understood that the ban was inescapable and that it would be better to support it rather than oppose it. The second largest union in terms of membership, SYNHORCAT, immediately stood out for its responsible position concerning the public health and legal liability issues at stake. This union already had direct experience with the “100% tobacco free” program in 2005 and the failure of smoking bans based on free choice and voluntary participation. Restaurant owners refused to ban smoking in their establishments while their competitors were not required to do the same. More receptive to a comprehensive ban on smoking as the meetings progressed, with constant efforts to inform (58) and negotiations, SYNHORCAT was later joined by other partners, including discotheques and restaurant chains. Thus the hotel, restaurant and catering sector gradually became an ally of the ban (59), via its representatives. This support was clearer once the executive order banning smoking was adopted: instead of appealing against the executive order as in the case of tobacco retailers, cigar clubs and the tobacco industry, the leaders of these hotel, restaurant and catering unions

(57) Assemblée nationale (National Assembly), debate “La dépendance au tabac, la nécessité d’une nouvelle loi” (“Tobacco dependency, the need for a new law”) statement by Mr Dominique Olivier, Confederal Secretary, Health representative for the CFDT, 02/11/2005 (58) Assemblée nationale, (National Assembly), speech by Franck Trouet, legal director of SYNHORCAT addressing the Russian parliamentary delegation, 18/06/2008 (59) Ref Statement, Didier Chênet ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part II I 37

took part directly in the implementation of the ban and were able to progressively rally other leaders to the NGOs’ cause. The CNCT, in partnership with other NGOs at the heart of the Alliance, was asked by the Health Minister to prepare, support implementation (specifically in CHRDC establishments), and evaluate the impact of the ban. A working group was set up drawing together the major players behind the ban: health organizations, politicians, professional representatives and an NGO from civil society, in charge of coordinating the group. The group was charged with ensuring that the measures adopted complied with best practices (60).

This collective effort undeniably permitted not only the adoption and effective implementation of the ban but, most importantly, the blocking of initiatives to obtain a dispensation from the ban. Nevertheless, a number of establishments neither complied with the smoking ban when the executive order came into force, nor are they in compliance today. Long-term efforts are needed to counter the relentless tobacco manufacturers’ lobby.

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(60) DGS, INCa, INPES ; parliamentary representatives: Yves Bur, representatives from hotels and catering: IDCCB (Institut pour le Développement des Cafés et Cafés-Brasseries - Institute for the Development of Cafés and Café-Brasseries), SNARR (Syndicat National de l’Alimentation et de la Restauration Rapide - National Union for Food and Fast Food Restaurants), SNDLL (Syndicat National des Discothèques et Lieux de Loisirs - National Institute for Discothèques and Leisure Premises), SYNHORCAT, SNRPO (Syndicat National de la Restauration Publique Organisée - the National Union for Organised Public Restaurants), SNRTC (Syndicat National de la Restauration Thématique des Chaînes - the National Union for Themed Chain Restaurants), UMIH. 95% of the hotel and catering workforce was thus brought together except for members of the Confédération Nationale des Débitants de Tabac (the National Confederation of Tobacco Retailers) who were violently hostile to the executive order and opposed to its adoption and its maintenance 38 I Part II I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

> C] COORDINATE INDIVIDUAL ACTIONS 1) NGO projects as part of the Cancer Plan On May 27, 2003, as part of the Cancer Plan, the Health Minister announced an increase in funding for tobacco control NGOs: a budget of 6 million euros was allocated to finance their activities (2 million euros for national projects and 4 million euros for regional projects). The DGS specifically funded national projects while the INPES (on a budget set up in balance with the DGS) took charge of regional projects related to education, health promotion related to cancer and especially smoking prevention.

2) Media campaigns by NGOs aI Campaigns for the general public From the very start of the smoking ban debate at the end of 2004, the CNCT wanted to focus its communications campaign on the protection of individuals at their place of work (61). The following year, the NGO endeavored to increase public awareness of the risks of passive smoking, as exposure to second-

hand smoke presents not just a nuisance, but a fatal risk. The campaign highlighted the high levels of exposure in hotel, restaurant and catering establishments in order to prevent their attempts obtain a dispensation from the ban (62). In 2006, during the Parliamentary Mission, the CNCT wanted direct victims of passive smoking to be involved in the debates and their voices be heard to bring a fundamental human dimension to the proposed ban. To this end, filmmaker Nadia Collot filmed the story (63) of Michèle, a non-smoker who developed lung cancer as a result of passive smoking at work. When the ban on smoking in hotel, restaurant and catering establishments entered into force, the NGOs wanted to renew its communications efforts to support implementation of the ban, particularly in potentially more problematic establishments such as discotheques (64). In 2007, DNF launched a campaign about the ravages caused by passive smoking (65). The campaign was based on a simple idea: to present individuals with a cigarette the wrong way round in their mouth expelling smoke with a clear message: “non-smokers are on the worst side of the cigarette”. This cam-

(61) La parole aux victimes du tabagisme passif (Victims of passive smoking speak out), www.cnct.org/site/article.php3?id_article=216, www.youtube.com/user/LeCNCT (62) La fumée tue (Smoke kills) - www.cnct.org/site/article.php3?id_article=426, www.youtube.com/user/LeCNCT (63) La parole aux victimes du tabagisme passif (Victims of passive smoking speak out), www.cnct.org/site/article.php3?id_article=618, www.youtube.com/user/LeCNCT (64) Campagne pour accompagner « le nouvel air » du 01/01/2008 (Campaign to support « New Air » 01/01/2008) www.cnct.fr, www.youtube.com/user/LeCNCT (65) http://dnf.asso.fr/ ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part II I 39

paign aimed to deal with the issue of tobacco smoke toxicity as well as the fact that passive smoking is imposed upon and endured by non-smokers.

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bI Campaigns aimed at politicians

Finally the LNCC promoted a smoking ban in all public places, putting the protection of employees at the heart of the campaign. It distributed a sticker that represented a departure from the traditional image of smoking, showing a gas mask with the inscription: “We don’t smoke here! We are proud to protect our employees and all non-smokers”. In anticipation of the upcoming legislation, employers were encouraged to act for the health of their employees and their clientele. The “No smoking” message was thus transformed into a positive health protection message.

The conference “Justice et tabac” (“The law and tobacco”), organized by the LNCC in partnership with the CNCT and with the support of the DGS, took place in October 2004. The aim of this conference was to bring together representatives from the legal, labor, and educational arenas and NGOs to discuss the issue of tobacco control. These exchanges increased awareness of the health problems created by poor implementation of the Evin law and the need to find new solutions. A general public mobilization, “Nouvel air, nouvelle ère” (“New Air, New Era”) aimed at members of parliament involved the distribution of “citizen postcards.” The cards, signed by French citizens, were sent back to regional committees of the LNCC and delivered to members of parliament to coincide with protests organized all over France.

40 I Part II I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

More than 360 000 signed cards were officially presented to the Minister of Health in February 2006 in support of new legislation to ban smoking.

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In October 2006, 508 000 emails, sent to members of parliament, blocked a formidable lobbying effort by the hotel, restaurant and catering sector, instrumentalized by a tobacco industry intent on burying the executive order proposal. On the eve of November 6, a day of protest by tobacco retailers against the executive order, the DNF produced a leaflet analyzing 8 false truths spread by retailers about the ban. In November 2007, 586 000 emails sent to members of parliament helped put an end to requests for exemptions and to “murderous law proposals”.

When the Prime Minister put Xavier Bertrand’s executive order proposal on hold indefinitely, the DNF managed to mobilize its members and supporters. In just four days, more than 9000 emails were sent to members of parliament, which led to the creation of the parliamentary mission on the smoking ban in June 2006.

As the implementation of the smoking ban in France was organized in two phases, it was essential to ensure that the implementation dates not be deferred for any reason. This risk was all the more palpable in mid 2007 due to the presidential and legislative elections in France, leading the CNCT to appeal to all candidates to prevent challenges to the ban (66).

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(66) CNCT asks French presidential candidates to support the fight against the most important avoidable cause of death in France, 20 minutes, 22/03/2007 ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part II I 41

> D] THWART ATTACKS BY INDUSTRY 1) lobbying efforts by restaurants owners, café owners and tobacco retailers At the heart of the hotel, restaurant and catering sector, the strongest opponents of the smoking ban were tobacco retailers. It should be noted that in France, tobacco distribution is a state monopoly. The state authorizes a particular category of business owners to sell tobacco, on condition that they respect a very strict contract. These authorized distributors are commonly known as ‘buralistes’ (tobacco or cigarette retailers; owners of a “bureau de tabac” - tobacco shop). Restaurant and café owners thought their businesses would die if a definitive smoking ban were introduced. However, the reality contradicts these unfounded, doom-mongering assertions. According to the report, Smoke free Europe makes economic sense. A report on the economic aspects of Smoke free policies, “nearly a hundred studies were reviewed (studies carried out in Canada, the UK, the USA, Australia, New Zealand, South Africa, Spain and Hong Kong) without being able to find a negative or positive impact (67).” During the debates leading to the smoking ban executive order and all

through 2007 (a calendar year grace period granted by the government to permit establishment owners to prepare and bring their premises into compliance), hotel, restaurant and catering business owners regularly summoned the media and lobbied parliament and the government in a relentless effort to obtain exemptions from the smoking ban.

2) Arguments set forth in efforts to obtain exemptions from the ban 1 I “Tobacco retailers have already lost a lot of money with the increase in tobacco prices” According to Patrick Brice, President of the ‘la Fédération du Nord des Détaillants de Tabac’ (Northern Federation of Tobacco Retailers), the ban on smoking was going to create a turnover drop of 30% (68). What he did not explain was that, while their turnover could indeed diminish, tobacco retailer revenue would nonetheless increase! In fact, the State had set up a “Contract for the Future” (“Contract d’Avenir”) in 2002 with retailers. Government subsidies made available under this contract enable cigarette vendors to maintain stable revenues over a long period (2003-2006, 2006-2008, 2008-2011). The government ensured the continued existence of these subsidies to avoid a crisis in the sector. Thus, 150 million euros worth of subsidies were paid out to cigarette vendors in 2005. The average tobacco retailer’s ‘tobacco turnover’ rose from 450 000 € in 2002 to 480 000 € in 2005.

(67) Report: Europe sans tabac : une politique qui a tout son sens au plan économique, (A Tobacco Free Europe: a policy which make economic sense). Smoke Free Partnership (SFP), May 2005 (68) Chiffre d’affaires: CA: turnover 42 I Part II I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

2 I “Restaurants and cafés are going to see their turnover drop dramatically” The economic statistics published each month by INSEE are indisputable on this subject. One only needs to compare monthly turnover for restaurants with monthly turnover figures from preceding years. Thus, in relation to January 2006, January 2007 showed a small drop in sales for cafés (1.6%), scarcely higher than 2005 (1.2%). Hotel and restaurant turnover increased by 1.83%, slightly more than the previous year (1.5%), when the smoking ban was not yet in place. Moverover, from February 2007 onwards all the indicators become positive. Café turnover grew by 0.2%, whereas it had dropped by 1.1% in the previous year. Hotel and restaurant turnover continued to increase by 3% compared to an increase of 1.6% in February 2006. 3 I “As turnover (CA) is going to drop, unemployment curves are going to go up”

portant to me”). Indeed, smoking is legally considered a matter of individual freedom, but the act of smoking can and should be regulated when this freedom threatens the health and wellbeing of individuals surrounding the smoker. 5 I “Bars and restaurants are the last remaining places to have a good time: we should preserve them !” Having a good time does not necessarily go well with smoke. In fact, having a good time primarily depends on the environment and service provided in these establishments. How can tobacco be part of a convivial environment, given the nuisance its consumption creates? Indeed, the opposite is true: the real values of the hotel, restaurant and catering profession are to ensure that owners are attentive to the comfort of their clients, the cleanliness of their premises, and the safety of their employees.

There is no need, if there is no drop in turnover, to make any changes to employee numbers or to recruitment requirements. For 80% of tobacco retailers, the revenue increase is substantial. The government has thought about adopting measures allowing these business owners to add to the range of services they offer: newsagent, sub post office etc. The aim is to enable them to gradually become less dependent on tobacco sales, stabilize their income and keep their employees.

6 I “Electoral clout: our clients will remember this when the elections come around”

4 I “The smoking ban is a liberticidal law”

7 I “Bans have never solved public health problems”

During their campaign, the tobacco retailers’ slogan could have been, “Ma liberté, j’y tiens” (“My freedom is im-

The tobacco retailers’ representatives exaggerated the importance of the electoral clout of their clients who, moreover, were not necessarily in favor of smoking. They threatened the party in power with a potential loss in the upcoming elections. For proof to the contrary, Yves Bur and Xavier Bertrand were both re-elected in the first round of the 2007 elections.

Limiting smoking in public places while giving people the possibility of smoking

ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part II I 43

elsewhere is not a total ban. Bans have always contributed to reducing smoking and have also had beneficial effects on staff and clients (69). 8 I “A comprehensive ban would be a catastrophe for rural bars selling tobacco, the last remaining meeting places in these areas” It is important to realize that bars selling tobacco are often the only meeting places in rural areas. Nonetheless, as they are often full of smoke, they voluntarily shut out a wide range of people. The tobacco retailers’ union used the smoking ban to ‘victimize’ these little country bars without specifying that nearly 80% of tobacco retailers are in urban areas. As these arguments demonstrate, the tobacco industry worked away at CHRDC professionals, with the aim of feeding their unfounded fears and to mobilize them against any policy protecting people from smoking. However, in response to industry protests and other media events, the NGOs were able to use economic data and the verbal support of other members of industry who were in favor of the ban, thanks to a partnership between the public health sector and the CHRDC sector of activity.

(69) Cf. CNCT press release concerning the price increase for fine-cut tobacco in August 2008. 44 I Part II I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

> PART III What next? How to make the ban last A] ASSESS AND PUBLICIZE THE IMPACT OF THE BAN 1) Economic impact The working group in charge of implementation of the Bertrand executive order chose to assess the economic impact of the smoking ban in quasi real time, initially relying on a panel of 550 preexisting retail outlets (cafés and cafés-brasseries only), extended to 10,000 establishments, including purely restaurant establishments and discotheques in March 2008. This assessment suggests that the sector’s turnover fluctuation is the arithematic sum of the “economic climate effect” + the “executive order effect” + “buying desire effect”: > The “economic climate effect” is common to all retail outlets; > The “executive order effect” only applies to retail outlets having implemented the ban in January 2008; > Actual sales figures are arrived at by factoring in the “buying desire” variable.

The first trimester trend, consisting of a drop in sales in the CHRDC (70) sector after the entry into force of the ban, can be analyzed as follows: > The drop in sales during the first month is primarily due to a drop in patronage. However, paradoxically, there is also an early “windfall effect” (corresponding to CHRDC patron curiosity); > The second month rather confirms a drop in the “average bill”, whereas the drop in patronage stabilizes (the “windfall effect” no longer applies due to the public’s gradual acceptance of the ban); > The bottom of the wave is accentuated during the third month since new clientèle visits are lower than expected and service innovations are not yet noticed or too new to have a noticeable impact on patronage. There are objective measures of the differentiating effect of the ban on retail outlets: > Customer structure (significant visit customers vs. regular customers); > Size of the establishment (large cities are faring better due to large diversified establishments);

(70) Professor Serge Vendemini, National Assembly, Impact économique de la mesure d’interdiction de fumer dans les établissements CHRDC (Economic impact of the smoking ban measure in CHRDC establishments), 18/06/2008 ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part III I 45

> Zone (small cities have been experiencing a more signficant drop in patronage, combined with a drop in the average bill amount). In addition to these objective constraints, anticipation of the ban imposed by the 15 November 2006 executive order is also a determining factor. Thus, cafés and brasseries and other establishments electing not to comply with the executive order are the real winners. Establishments lagging behind are the ones that couple the objective constraints cited above with a flagrant lack of initiative. Evolution of sales activity during the first 5 months (January to May 2008 compared to the same period in 2007) by retail outlet type is as follows: > Traditional cafés and discotheques (relying on either regular or young clientèle) are more affected by limited spending power and by a more limited range of services; during the first 5 months they experienced a 10% drop in activity, in rural zones, activity dropped more than 12%; > Trendy bars are faring better (broader social mix, richer and more diversified range of services) with a drop in activity ranging from 8% to 10%; > The restaurant world is faring even better, benefiting from both a different customer profile and a more innovative range of services activity dropped a moderate 4% to 6%.

In addition to assessing the economic impact of the smoking ban, (on the hospitality and restaurant sector), the working group gave economist Pierre Kopp, a public policy evaluation specialist, the task of performing a complete analysis of the policy behind the ban. This ongoing study is essentially a cost-benefit (economic and social) analysis of the ban. Results of the study will be available at the end of 2008.

2) Health effects The monthly indicator “ETS” (ImETS) An evaluation of the health benefits of the smoking ban following the 15 November 2006 executive order (71) was conducted by Professor Dautzenberg using the ImETS. This monthly indicator (ImETS) (72) is made up of: > 4 tobacco smoke exposure indicators (E), > 4 smoking (and smoking cessation) indicators (T), and, > 4 health impact indicators (S). Compiling information from January 2007 to January 2008, the study addressed two areas: > The entry into force of the comprehensive smoking ban on February 1, 2007 (except for the CHRDC sector): The ban apparently had little effect on health indicators in general and little effect on cigarette sales or smoking cessation efforts; > Initial data available for January 2008: An improvement of approximately

(71) January 2007 to January 2008 ImETS data assessment (72) Indicator developed by INPES, InVS (Institut de veille sanitaire), OFDT, OQAI (Observatoire de la qualité de l'air intérieur) and DGS 46 I Part III I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

80% with respect to exposure based on the 4 exposure indicators. This confirms that tobacco smoke was clearly the principal cause of fine particle pollution in buildings. Concerning the health benefits linked to the smoking ban in the CHRDC sector, it would be difficult at present to draw definitive conclusions. The monthly indicator ETS (ImETS) recorded a decrease in respiratory and eye symptoms in CHRDC sector employees (decrease ranging from 13% to 67% between January 2007 and January 2008, depending on the symptoms). This indicator also recorded a decrease in hospital admissions for myocardial infarctions, particularly for the under-65 population (decrease between 11 and 19%; approximately 15% fewer admissions in January and the first 15 days of February 2008) as well as a downward trend in the rate of emergency admissions for stroke (same magnitude as for the drop in infarctions). However, this preliminary evaluation of the cardiovascular impact of the French executive order conducted on the basis of diagnoses recorded daily in about thirty hospital emergency services (OSCOUR Observatory – Organisation de la surveillance coordonnée des urgences; Network for emergency department surveillance data; InVS – Institut de veille sanitaire; French Institute for Public Health Surveillance) – does not yet make it possible to draw definite conclusions. It must be confirmed in a more formal manner using data that are more exhaustive and more representative on a regional or national scale (see below). It is nevertheless consistent

with, on the one hand, what is already known about cardiovascular risk associated with passive smoking, and, on the other hand, with the experiences gained in other European countries such as Italy and, more recently, Scotland. A Health assessment focusing on cardiovascular function is underway The impact of the ban on cardiovascular function is the second field of health assessment. Risk of cardiovascular events is associated with active and/or passive exposure to tobacco smoke. There is a particular health and research interest in studying this risk, due to its capacity to appear or disappear in the very short-term, depending on the type of smoke exposure. The impact of smoke exposure on the dilatation capacity of arteries and on the risk of clot formation are more specifically examined within this framework. The study population consists of bar, bar and tobacco outlet, brasserie and discotheque employees, exposed to particularly high levels of smoke pollution prior to January 1, 2008. Not only does non-smoker and smoker exposure to tobacco smoke cause cancer but, in non-smokers, it is also responsible for vascular complications (myocardial infarction and stroke). These cardiovascular diseases can occur in young subjects, because the mechanisms in question can occur in “normal” arteries. Interestingly, anomalies that are at the origin of heart attacks disappear as soon as the subjects are no longer exposed to tobacco smoke.

ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part III I 47

The first study (DILATER - 'DILATATE') (73) seeks to evaluate the impact of stopping exposure to smoking on the dilatation capacity of arteries in non-smoker subjects initially exposed to second-hand smoke at work, then spared from this exposure thanks to the entry into force of the second phase of the November 2006 executive order. This study is performed in two phases, the first taking place before the entry into force of the executive order (November and December 2007). Arterial dilatation capacity is examined using ultrasound analysis of forearm arteries during and after cuff inflation; a blood test is also carried out. The ultrasound is repeated during the second phase of the study, three months after the executive order’s entry into force, to check stabilization of artery dilatation capacity. The second study (AERER - 'AIR') (74) concerns changes in the risk of clot formation and other biological parameters. As in the DILATATE study, the first phase is carried out before the entry into force of the executive order. During this phase, a blood sample is drawn and used to carry out various titers and biological measurements, thereby permitting evaluation of clot formation and other biological parameters. In the second phase, three months after the executive order’s entry into force, a blood sample is taken under the same condi-

tions, in order to check for any changes in the various parameters. Like its counterparts in other countries, the French cardiology community also intends to evaluate, in a very objective manner, the real impact of this executive order on the incidence of acute coronary syndromes (ACS). This evaluation is currently underway as part of the EVINCOR (75) study. One of the study's aims is an analysis of the number of hospital admissions across all French hospitals, before and after implementation of the two phases of the executive order using the national PMSI (Programme de Médicalisation des Systèmes d’Information (Medicalization of Information Systems Program) database. This data will be examined in search of a possible “break” in event curves occurring around the two implementation dates of the executive order (February 1, 2007 and January 1, 2008). The complete gathering and analysis of this data will take place during 2009. The scientific data concerning France as well as the preliminary results of the cardiovascular assessments before and after January 1, 2008 will not be available before 2009. The scientific community hopes to collect data similar to data collected in Italy and published in the European

(73) Study conducted by Professor H Boccalon (Dr Bura-Rivière Dr Cambou), Vascular Medicine Department of the University Hospital of Toulouse, France, (CHU Toulouse) in collaboration with INSERM, unit 558 (V. Bongard) (74) Study conducted by Institute of Cardiology, Pitié-Salpêtrière Hospital Group, (INSERM, unit 856, Pr Montalescot, Dr Collet) in collaboration with the Hematology Laboratory of Toulouse (Pr Sié) (75) EVINCOR Study (EValuation de l'impact de l'INterdiction de fumer sur les syndromes CORonaires aigus Evaluation of the impact of the smoking ban on acute coronary syndromes), led by the EpidemiologyPrevention Working Group of the French Cardiology Society (Société Française de Cardiologie - SFC), with funding from the French Cardiology Foundation (Fédération Française de Cardiologie - FFC) 48 I Part III I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

Heart Journal (76) and Circulation (77). In Italy, where legislation (very similar to that of France) was adopted in January 2005, an 11% drop in myocardial infarctions among subjects within the youngest age group was noted in the months immediately following implementation of the law. Equally spectacular, but yet to be published results were reported in Ireland (-14,5%) (78) and Scotland (-17%) (79).

> B] REMAIN VIGILANT AGAINST ATTEMPTS TO SKIRT THE EXECUTIVE ORDER At first glance, the French legal provisions fulfill the implementation requirements of Article 8 of the treaty. However, successful implementation of an effective law is not sufficient, as the affected industry is constantly trying to promote new ways of skirting the ban.

1) Private clubs Just a few months prior to the entry into force of the smoking ban, an unprecedented media campaign succeeded in convincing some CHRDC executives that by becoming a private

club, they could escape the smoking ban. The underlying idea was that they could avoid having the smoking ban apply to their premises by changing its traditional status from “public place” to private club (with restricted access). Nevertheless, the articles of the Public Health Code specify that this ban applies to all enclosed and covered premises intended for public use. Simply calling an establishment a private club does not define its legal status. It is merely a designation which changes nothing about the fact that the establishment is a space, subject to a certain number of health and safety rules, including the ban on smoking, which apply to all workplaces without exception. The June 29, 2005 decision of the Court of Cassation (Cour de Cassation, the highest court in the French judiciary), imposes an obligation on employers to protect the health of their employees, regardless of the legal status of the establishment. Thus, the idea of using the status of private club to escape application of the executive order is moot.

2) Hookah cafés (Cafés-chicha) Some of these establishments continue their business activity with impunity,

(76) Barone-Adesi F, Vizzini L, Merletti F, Richiardi L. Short term effects of Italian smoking regulation on rates of hospital admission for acute myocardial infarction. Eur Heart J 2006; 24: 68-72 (77) Cesaroni G, Forastiere F, Agabiti N, Valente P, Zuccaro P, Perucci CA. Effect of the Italian smoking ban on population rates of acute coronary events. Circulation 2008;117: 1183-8 (78) Cronin E, Kearney P, Sullivan P, on behalf of Coronary Heart Attack Ireland Registry (CHAIR) Working Group. Impact of a national smoking ban on the rate of admissions to hospital with acute coronary syndromes. ESC 2007 Vienne; 4 September 2007 (Poster 3506) (79) Pell JP, Haw S, Cobbe S et al. Smoke-free legislation and hospitalizations for acute coronary syndrome. N Engl J Med 2008;359:482-91 ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part III I 49

even though they are also covered by the smoking ban. Indeed as public places, these establishments have an obligation to respect the provisions of 15 November 2006 executive order. In the majority of cases, these cafés cannot meet the standards of the executive order and must therefore cease their Hookah (narguilé) activity and convert themselves into cafés or tea rooms.

agers of these establishments could not have been unaware of the regulatory changes implementing the Evin law when they started their activity. Indeed, they voluntarily opened establishments, which target mainly young customers, in blatant violation of the law.

>

The executive order of 15 November 2006 permits certain establishments to have smoking-rooms, following very strict rules:

3) Non-conforming smoking-rooms

> The room must be enclosed and dedicated exclusively to tobacco consumption. No services shall be delivered in the room. At least one hour of air renewal, in the absence of any occupant, must take place prior to carrying out any cleaning or maintenance tasks in the room;

In the last three or four years these cafés have multiplied in number. They are often in complete violation of the law, because they are neither authorized nor licensed to sell tobacco products (under the Tax Code, tobacco resale is only authorized in specific types of establishments). The explosion of the number of establishments offering hookahs coincides with the first wave of debates concerning the smoking ban in social-meeting places. Man-

> The room must be equipped with an extractor fan allowing a minimal renewal of air ten times the volume of the room per hour. This device must be entirely independent of the building's ventilation or air-conditioning system. The room must be maintained in continuous negative pressure with respect to communicating rooms; > The room must be equipped with automatic locks that cannot be unintentionally opened; > It should not be located in a passage area; > Its surface area shall not exceed 20% of the total surface area of the

50 I Part III I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

establishment in which it is located, nor shall it exceed 35m2. Preliminary NGO observations indicate that few smoking-rooms were installed (80) following the executive order: according to Paris Police Headquarters (81), forty Parisian establishments were equipped with such rooms as of end of May 2008. There is currently no data concerning installation of smokingrooms within companies nor is there data concerning the proportion of smoking-rooms that are not in conformity with the enacted rules. As soon as the executive order was implemented therefore, NGOs alerted public authorities to repeated and organized attempts by manufacturers to sell smoking-rooms and cabins that do not conform with the regulations. NGO watchdogs frequently observe that hospitality and restaurant establishments, supported by their trade unions, circumvent the smoking-room provisions by converting their terraces into genuine smoking spaces. Tobacco manufacturers, particularly BAT, are directly behind these violations, as the website www.cap-2008.com/amenagement.html illustrates. It is within this context that NGOs and CHRDC trade-union leaders emphasized the importance of clarifying the texts relative to terraces and a rigorous application of the ban with regard to second-hand smoke.

4) Terraces According to the 15 November 2006 executive order, the smoking ban affects public places, in all instances where these places are enclosed and covered and accommodate the public or serve as workplaces. The two conditions are cumulative. Thus, the ban does not apply to public places which are enclosed, but not covered, or covered, but not enclosed. Terraces theoretically fall into this category of public place. For this reason, a restaurant authorized to use the public space found outside the restaurant's building can authorize its customers to smoke there. However, in practice, this principle has been circumvented: > Either because the terrace was covered and enclosed to improve customer comfort (for example, to avoid drafts in winter); > Or because, in spite of the fact that the terrace is open, the restaurant building itself is not separated from this completely smoked-filled space. In order to avoid exposure to secondhand smoke from customers and employees and the potential legal consequences for managers of these establishments, it is important to have these spaces inspected by enforcement agents charged with overseeing implementation of the law. It should also be required that these spaces be completely uncovered or, in cases where a roof covering exists, even if removable,

(80) DNF TNS Survey, Impact de la mesure d’interdiction de fumer dans les CHRDC, May 2008 (Impact of smoking ban on CHRDC premises) (81) Paris Prefecture, 04/06/2008 ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part III I 51

be designed so that the largest side of the space remains permanently open and free of any form of insulation. Moreover, the establishment must be completely separated from its terrace, so that the terrace's pollution does not spread inside the premises.

> C] CHALLENGES 1) Mobilize the inspectors In France there several inspection bodies authorized to inspect and sanction failures to comply with the smoking ban legislation: > Officers and agents of the judicial police: they cite infringements under the powers conferred upon them under the Code of Criminal Procedure; > Public health physicians (médecins inspecteurs de santé publique, MISP), sanitary engineers (ingénieurs du génie sanitaire, IGS), health and social care inspectors (inspecteurs de l’action sanitaire et sociale, IASS) and the members of the corps of public health physician-inspectors: all report to the Ministry of Health and can exercise their duties in decentralized services; > Workplace inspectors and workplace controllers under their authority (reporting to the Ministry of Transport, Agriculture, or Labor). By definition, these agents only intervene in establishments whose employees are covered by the Code of Labor (government agencies and organizations are excluded).

In 2008, the National Police's Executive Office (Direction Générale de la Police Nationale) conducted a study on the inspections carried out by its agents in hospitality and restaurant establishments during the first three months of the new executive order's implementation. A total of 561 violations were recorded within the territory. More than 60% (358) of the violations were committed by smokers. The other 253 violations involved establishment managers (failure to display mandatory notices, inciting non-respect of the new regulation). During the same period, the services of the Head Office of the Gendarmerie (Direction Générale de la Gendarmerie) carried out inspections and detected 71 smoker violations in a broad range of public places (shopping malls…) and 15 violations involving management. Compared to other countries that have implemented a smoking ban, such as Ireland and Scotland, inspections carried out in France have been extremely limited. This is explained by an insufficient commitment of designated inspection bodies responsible for this task. Though there are a good number of people involved, no one wishes to coordinate this work, counting instead on one of the other bodies to spearhead the task. Certain inspection bodies received training, in particular from the Ministry of Health, at the time the legislation came into effect on February 1, 2007. However, this training was incomplete, as it did not include inspection of smoking-room compliance. Other bodies, such as the police agencies, specifically in charge of inspections in hospitality and restaurant establish-

52 I Part III I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

ments, have no special training and in fact do not inspect smoking-room installations or the terraces that could be transformed into non-compliant smoking-room. Lastly, the government’s instructions are not very specific and are applied in a decentralized way. This leads to disparities in the implementation of the ban in different French regions.

2) Build on public opinion Finally, public support and the role played by changing public opinion were and remain determining factors.

>

From this point of view, to avoid lax implementation of the executive order, all inspection bodies need to be mobilized, using clearly defined instructions, planning inspections before and after violations or seizures. Moreover, training of officers involved in monitoring compliance should make them more aware of key issues at stake with the ban, remind them that human lives can thus be preserved and that this monitoring assignment should not be treated as a secondary priority. Despite relatively few inspections to date, managers of public places and workplaces have become increasingly conscious of their responsibilities and individuals have finally decided to demand compliance with the ban, clearly signs of the effective implementation of the measure.

The shift of public opinion, from a favorable, but relatively passive position to one of active support, followed the dissemination of knowledge concerning the real risks of passive smoking. The media, rather independent from the tobacco industry since the comprehensive ban on tobacco advertising in France, significantly contributed to this shift, by providing an uncensored, better treatment of the subject to the public. In the meantime, health authorities recognized the need to adopt a unified position, to define a broad coalition of actors, bringing together people of influence and knowing how to offset tobacco manufacturers and their allies.

ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Part III I 53

Today, smokers are more conscious of the dangers they are likely to expose others to and welcome a measure which also protects them from passive smoking and helps them prepare to stop smoking as well, if they wish. A study carried out on a representative sample of 15-75 year olds in April 2008 (82) concerning compliance with the smoking ban in social meeting places (restaurants, bars) illustrates both the effectiveness and increased support for the measure:

establishments that are part of the hospitality and restaurant sector. This being the case, government authorities need to exercise their obligation of control and sanction of violations to keep this provision in place, as strong public opinion is not enough to free them from these duties.

>

> 89% of the individuals questioned stated that they had never seen other customers smoking inside a restaurant. This figure was only 49% in 2005. > 83% of the individuals questioned stated being in favor of the smoking ban in restaurants (versus 67% in 2005). 83% of occasional smokers and 70% of regular smokers indicated support for the ban.

Another study carried out by DNF in May 2008 (83) sought to evaluate individual perceptions with regard to the measure. Overall, 82% of the individuals questioned had a favorable opinion of this measure (61% very favorable, 21% favorable), while the remaining 18% considered it an unfavorable measure. Nevertheless, this massive public support should not overshadow the fact that the tobacco industry continues to lobby very hard to ensure that smoking remains the social norm, particularly in (82) Phone interviews of a sample of 911 smokers, aged 15-75, conducted 22 – 30/04/2008 (83) DNF-TNS Direct Study, conducted on-line with a representative sample of 1084 people, May 2008 54 I Part III I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

> CONCLUSION

W

Whereas second-hand smoke and smoking are responsible for 70,000 deaths annually in France (this figure is likely to double by 2025 in light of past and present consumption trends), cigarette smoking and particularly its control constitute a major public health issue, mobilizing a wide range of actors from the administrative, medical, and educational sectors and from the political area as well. The implementation of Article 8 of the FCTC in France by way of the 15 November 2006 executive order, provided an opportunity to show the commitment of health sector and political leaders, and certain members of the hotel and restaurant sector to better protect individuals against second-hand smoke. Public health policy decisions are effective in protecting all individuals from the consequences of passive smoking, when they are well led, supported and implemented.

trol in general, implementing a set of coordinated measures and backed by financial and human resources that are reflective of the important stakes involved, needs to be defined. France's experience with the implementation of the smoking ban in public places could serve as an example for European countries such as Spain, Luxembourg and Belgium which continue to permit smoking in the CHRDC sector. In the same way, in the spirit of cooperation and information sharing encouraged by Part VII of the FCTC (Scientific and technical cooperation and communication of information), France's lengthy legislative efforts, which gave citizen health higher priority over tobacco industry interests, could provide answers to our international partners dealing with the challenges of tobacco control.

Although this report on the implementation of the FCTC concerns metropolitan France only, a study of the implementation of the smoking ban in overseas French communities is currently underway. Some of this data will be available during the second quarter of 2009. Many national challenges remain. Practices exploiting loopholes in the smoking ban legislation and insufficiencies in the training and mobilization of monitoring officers need to be dealt with. A medium-term strategy for tobacco con-

ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I Conclusion I 55

56 I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

> THE ALLIANCE’S PRESENTATION

T

The French Alliance contre le tabac, a federation founded by six associations following establishment of the Evin Law, today counts 34 associations active in the tobacco control movement. While each association has its area of expertise, all work toward a common goal: tobacco control. Membership in the alliance does not constitute an affiliation with other member associations. The Alliance brings together various associations and influential individuals committed to actively fighting tobacco use and its consequences, forming a lobby at key rallying moments to lend further weight to their cause. As a central clearinghouse, the Alliance facilitates exchanges and provides its member associations with an overall perspective with regard to national, European and international tobacco control strategies and policies.

• Alliance contre le tabac en Ile-de-France • Association des Acteurs Lorrains en Tabacologie (AALT) • Association d'Aide aux Victimes du Tabagisme (AAVT) • Association Interdisciplinaire de Recherche sur le Tabagisme en Basse-Normandie (AIRTBN) • Association Nationale des Sages-femmes Tabacologues • Association Périnatalité Prévention Recherche Information (APPRI) • Association pour la Recherche sur le Cancer (ARC) • Capitole Stop/Tabac • Comité d’Education Sanitaire et Sociale de la Pharmacie Française (CESPHARM) • Comité National contre les Maladies Respiratoires (CNMR) • Comité National Contre le Tabagisme (CNCT) • Coordination Bretonne de Tabacologie (CBT) • Coordination de Lutte Anti-Tabac Azur Méditerranée (CLATAM)

The Alliance strives to: • Develop and coordinate joint actions among associations for anti-tobacco lobbying. • Implement structured coordination of association efforts to ensure the consistency and maximum effect of initiatives. • Maintain a regular flow of information about tobacco control at the national and international level. • Support the development of regional alliances. • Support and contribute, directly and regularly, to the process of reflection, public activities and international initiatives, including implementation of the WHO Framework Convention for Tobacco Control and European legislation. • Participate in organizing major gatherings of the tobacco control community.

• Espace de Concertation et de Liaison Addictions Tabagisme (ECLAT) • Fédération Française de Cardiologie (FFC) • Fédération Française des Oncologues Médicaux (FFOM) • France Réseau des Acteurs en Tabacologie Ligérien (FRACTAL) • Institut Rhône-Alpes–Auvergne de Tabaco-logie (IRAAT) • Les Droits des Non-Fumeurs (DNF) • Ligue nationale contre le cancer (LNCC) • Ligue Vie & Santé • Mieux Vivre sans Tabac • Mutuelle Nationale des Hospitaliers (MNH) • Observatoire Sanitaire et Social des Activités Festives (OSSAF) • Office Français de prévention du Tabagisme (OFT) • Paris Sans Tabac (PST) • Réseau Hôpital Sans Tabac (RHST-A) • Société Française de Santé Publique (SFSP) • Société Française de Tabacologie • Tabac & Liberté

ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I The Alliance’s presentation I 57

> The Alliance’s members > AALT Association des Acteurs Lorrains en Tabacologie [email protected]

> CESPHARM Comité d'Éducation Sanitaire et sociale de la Pharmacie Française www.ordre.pharmacien.fr

> AAVT Association d'Aide aux Victimes du Tabagisme www.asso-victimes-tabac.com/

> CLATAM Coordination de Lutte Anti-Tabac Azur Méditerranée [email protected]

> ACTIF Alliance contre le tabac en Île-de-France www.festif.org > AIRTBN Association Interdisciplinaire de Recherche sur le Tabagisme en Basse-Normandie [email protected]

> CNMR Comité National contre les Maladies Respiratoires www.lesouffle.org > CNCT Comité National contre le Tabagisme www.cnct.org > CST Capitole Stop Tabac [email protected]

> APPRI Association Périnatalité Prévention Recherche Information www.appri.asso.fr

> DNF Les Droits des Non-Fumeurs www.dnf.asso.fr

> ANSFT Association Nationale des Sages-Femmes Tabacologues [email protected]

> ECLAT Espace de Concertation et de Liaison Addictions Tabagisme [email protected]

> ARC Association pour la Recherche sur le Cancer www.arc.asso.fr > CBT Coordination Bretonne de Tabacologie [email protected]

> FFC Fédération Française de Cardiologie www.fedecardio.com/ > FFOM Fédération Française des Oncologues Médicaux http://psydoc-fr.broca.inserm.fr/FSM/ SpecialitesMedicales/AuclercFFOM.html

58 I The Alliance’s presentation I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

> FRACTAL France Réseau des Acteurs en Tabacologie Ligériens www.tabacofractal.com > IRAAT Institut Rhône Alpes Auvergne de tabacologie [email protected] > LNCC Ligue nationale contre le cancer www.ligue-cancer.net > LVS Ligue Vie & Santé www.chez.com/lvsnet/ > MVST Mieux vivre sans tabac http://mvst.free.fr/ > MNH Mutuelle Nationale des Hospitaliers www.mnh.fr > OFT Office Français de Prévention du Tabagisme www.oft-asso.fr > OSSAF Observatoire Sanitaire et Social des Activités Festives www.ossaf.org > PST Paris Sans Tabac http://tabac-net.aphp.fr/tab-connaitre/ tc-association/tca-homepage.PST.html > RHST Réseau Hôpital Sans Tabac www.hopitalsanstabac.org/

> SFSP Société Française de Santé Publique www.sfsp.fr/ > ST Société de Tabacologie tabacologie.globalink.org/ > TL Tabac & Liberté www.tabac-liberté.com

Associated Members > Pr Maurice Tubiana Honorary President maurice.tubiana@biomedicale. univ-paris5.fr > Pr Gérard Dubois Honorary President [email protected] > M. Jacques Le Houezec Administrator [email protected]

Associated Institutions > AP-HP Assistance Publique–Hôpitaux de Paris http://www.aphp.fr > INPES Institut National de Prévention et d'Éducation pour la Santé http://www.inpes.santé.fr

ARTICLE 8 - MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION I The Alliance’s presentation I 59

> THE PRESENTATION OF THE CO-AUTHORS

A

> Alliance contre le tabac 14, rue Corvisart - 75013 Paris Phone number: + 33 (0)1 43 37 91 51

E-mails: [email protected] [email protected] > CNCT Comité National Contre le Tabagisme 119, rue des Pyrénées - 75020 Paris Phone number: + 33 (0)1 55 78 85 10 Emmanuelle Béguinot and Hélène Tournade E-mails: [email protected] [email protected] > DNF Les Droits des Non-Fumeurs 5, passage Thiéré - 75011Paris Phone number: + 33 (0)1 42 77 06 56 Maria Alejandra Cardenas E-mail: [email protected]

With the helpful contribution of: • M. Christophe Bass, Alain Molla and Associates law firm, Aix-en-Provence and Marseille's Bar • Professor Bertrand Dautzenberg, Office Français de prévention du Tabagisme (OFT - French Office of Tobacco Prevention) • Professor Daniel Thomas, Fédération Française de Cardiologie (FFC - French Cardiology Foundation) We would like to thank Mrs Mary Savagner for her translation and her final read-through.

> LNCC Ligue nationale contre le cancer 14, rue Corvisart - 75013 Paris Phone number: + 33 (0)1 53 55 24 46 Céline Buhler and Capucine de Bérard E-mails: [email protected] [email protected]

60 I Co-authors I MONITORING IMPLEMENTATION OF THE FRAMEWORK CONVENTION - ARTICLE 8

© Alliance contre le tabac, CNCT, DNF, INPES, LNCC, OMS, pour l’ensemble des visuels - Bernard Artal Graphisme / Imprimerie Peau - Octobre 2008

Clémence Cagnat-Lardeau and Pr Yves Martinet

• Alliance contre le tabac en Ile-de-France • Association des Acteurs Lorrains en Tabacologie (AALT) • Association d'Aide aux Victimes du Tabagisme (AAVT) • Association Interdisciplinaire de Recherche sur le Tabagisme en Basse-Normandie (AIRTBN) • Association Nationale des Sages-femmes Tabacologues • Association Périnatalité Prévention Recherche Information (APPRI) • Association pour la Recherche sur le Cancer (ARC) • Capitole Stop/Tabac • Comité d’Education Sanitaire et Sociale de la Pharmacie Française (CESPHARM) • Comité National contre les Maladies Respiratoires (CNMR) • Comité National Contre le Tabagisme (CNCT) • Coordination Bretonne de Tabacologie (CBT) • Coordination de Lutte Anti-Tabac Azur Méditerranée (CLATAM)

• Espace de Concertation et de Liaison Addictions Tabagisme (ECLAT) • Fédération Française de Cardiologie (FFC) • Fédération Française des Oncologues Médicaux (FFOM) • France Réseau des Acteurs en Tabacologie Ligérien (FRACTAL) • Institut Rhône-Alpes–Auvergne de Tabaco-logie (IRAAT) • Les Droits des Non-Fumeurs (DNF) • Ligue nationale contre le cancer (LNCC) • Ligue Vie & Santé • Mieux Vivre sans Tabac • Mutuelle Nationale des Hospitaliers (MNH) • Observatoire Sanitaire et Social des Activités Festives (OSSAF) • Office Français de prévention du Tabagisme (OFT) • Paris Sans Tabac (PST) • Réseau Hôpital Sans Tabac (RHST-A) • Société Française de Santé Publique (SFSP) • Société Française de Tabacologie • Tabac & Liberté

14, rue Corvisart - 75013 Paris www.alliancecontreletabac.fr

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