A NEW WEAPON TO PROTECT NONSMOKERS ABROAD

How a New World Treaty, Modeled in Part on the Americans With Disabilities Act [ADA],
Can Help Provide Additional Protection For Nonsmokers Just As The ADA Did in the U.S.

In the United States the Americans With Disabilities Act [ADA], and the predecessor statute upon which it was modeled – the Federal Rehabilitation Act [FRA] –  has been used to protect the rights of nonsmokers, and particularly the rights of nonsmokers who have medical or other physical conditions which made them especially susceptible to tobacco smoke.

Even in the 1970s, prior to the passage of any nonsmokers’ rights statutes, or to any knowledge that secondhand tobacco smoke can and does cause cancer and heart attack in nonsmokers, ASH was able to develop the theory that a person with a special sensitivity to tobacco was a “handicapped person” under the FRA, and therefore entitled to “reasonable protection” from secondhand tobacco smoke. 

“Reasonable protection” at that time might include no more than a prohibition on smoking in the particular office where the person worked – a remarkable achievement at a time when smoking in offices was virtually unrestricted, and where even the American Cancer Society refused to ban smoking in its offices or even at the meetings of its board.

Subsequently, as our knowledge about the dangers of secondhand tobacco smoke has grown, and more and more restrictions on smoking have been found to not only be  reasonable but also generally accepted, a “reasonable accommodation” or a “reasonable modification” – the terms used by the ADA – could mean banning smoking in an entire restaurant or building, or even protecting employees from tobacco smoke residues [now termed ‘Third Hand Tobacco Smoke”].

The Framework Convention on Tobacco Control [FCTC], a world antismoking and nonsmokers’ rights treaty ratified by more than 160 countries, purports to provide a substantial measure of protection from involuntary exposure to secondhand tobacco smoke, at least in those countries which have ratified it.  For more information, including the text of the entire treaty, click on General link, and Article 8

It provides in relevant part: Article 8 – Protection from exposure to tobacco smoke [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.

The official guidelines adopted to flesh out the bare treaty language of Article 8 are very strong [ See ASH's Report and Article 8 Guidelines and All Guidelines  and provide:

24. This creates an obligation to provide universal protection by ensuring that all indoor public
places, all indoor workplaces, all public transport and possibly other (outdoor or quasi-outdoor) public
places are free from exposure to second-hand tobacco smoke. No exemptions are justified on the basis
of health or law arguments. If exemptions must be considered on the basis of other arguments, these
should be minimal. In addition, if a Party is unable to achieve universal coverage immediately, Article 8
creates a continuing obligation to move as quickly as possible to remove any exemptions and make the
protection universal. Each Party should strive to provide universal protection within five years of the
WHO Framework Convention’s entry into force for that Party.
25. No safe levels of exposure to second-hand smoke exist, and, as previously acknowledged by the
Conference of the Parties in decision FCTC/COP1(15), engineering approaches, such as ventilation,
air exchange and the use of designated smoking areas, do not protect against exposure to tobacco
smoke.
26. Protection should be provided in all indoor or enclosed workplaces, including motor vehicles
used as places of work (for example, taxis, ambulances or delivery vehicles).
27. The language of the treaty requires protective measures not only in all “indoor” public places,
but also in those “other” (that is, outdoor or quasi-outdoor) public places where “appropriate”. In
identifying those outdoor and quasi-outdoor public places where legislation is appropriate, Parties
should consider the evidence as to the possible health hazards in various settings and should act to
adopt the most effective protection against exposure wherever the evidence shows that a hazard exists.

However, these guidelines apparently are not binding on any signatory, so the general requirement mandating “effective . . .  measures, providing for protection from exposure to tobacco smoke” may in many cases provide insufficient protection for persons with asthma, hay fever, sinusitis, allergies, and a variety of other conditions which make them especially susceptible to smoke.

Also, unfortunately, some countries have apparently began approving guidelines for separate smoking and nonsmokers areas – in apparently contravention to the guidelines, so that persons who are sensitive may still be subjected to levels of tobacco smoke capable of immediately affecting their breathing and also causing other serious problems.

Fortunately, there is now another world treaty entitled the Convention on the Rights of Persons with Disabilities [CRPD].  Unlike the FCTC, which is aimed primarily at protecting the entire population (or at least the entire population of nonsmokers), this new treaty is aimed at protecting the small minority of citizens who have “disabilities.” 

Since it is similar in many ways to the American ADA and borrows some of the same concepts and language (e.g. “reasonable accommodation”), it is reasonable to assume that this new treaty likewise can be applied to people who are especially sensitive to secondhand tobacco smoke (and not just those with more conventional disabilities like blindness or deafness).  If this proves to be true in the many (and growing number of ) non-U.S. countries which are now bound by this new treaty, this new treaty could prove to be a powerful new weapon to protect nonsmokers in those jurisdictions. 

As such, this new treaty can be used in at least two ways. 

FIRST, if an individual with a special sensitivity to tobacco smoke is bothered by exposure in various situations and is unable to obtain sufficient protection under the more general (and possible less strict) standards mandated by the FCTC, he or she might be able to seek additional protection (above and beyond that to which the ordinary citizen would be entitled) by relying upon the new CRPD.

SECOND, if an antismoking organization or other group seeks to expand and extend the protections afforded to the general public from exposure to secondhand tobacco smoke, they would be advised to seek to bring a test case including one or more people with a special sensitivity to tobacco smoke who are therefore entitled to additional or extended protection because of their medical condition. 

After all, if restrictions on smoking in a public place (e.g., a restaurant, airport, shopping mall, etc.) or an office are imposed because of the need under CRPD to protect those with special sensitivities, those same measures will also be in effect and benefit members of the general public (i.e., those without such medical conditions) who likewise frequent these same places.

How the CRPD can be applied in each country – e.g., by what kind of law suit in court, through administrative complaints or petitions, demands for national or local legislation, etc. – will obviously depend on the law, customs, and practices of each country.  However, background information about how the very similar ADA has been applied in the U.S., and an analysis showing the similarities between the ADA and the CRPD, could be very useful to attorneys and others seeking to apply the CRPD to tobacco smoke pollution in their own countries.

For this reason, Action on Smoking and Health (ASH), working through its Executive Director who is also a law professor, asked law students to prepare papers on this topic.  These papers – all of which can be dowloaded as Microsoft WORD documents – describe:
* how the ADA has been so useful to nonsmokers in the U.S,, http://ash.org/disabletreaty4.doc
* the small but potentially crucial distinctions between “reasonable accommodation” and “reasonable modification” (the two different standards applied by the U.S. law) http://ash.org/disabletreaty2.doc
* how the CRPD is very similar to the ADA (and therefore arguable should be applied in much the same way to protect nonsmokers), http://ash.org/disabletreaty3.doc and
* some preliminary and general  thoughts about how treaties can be enforced within the legal framework of individual countries http://ash.org/disabletreaty1.doc

ASH makes these documents freely available to the antismoking community in hopes that they will prove to be helpful.  Any or all of these documents may be freely downloaded [in Microsoft WORD format], copied and circulated, and ASH asks only two things.

FIRST, please be so kind as to let us know of any relevant developments, especially in other countries, so that ASH in turn can update this document and/or otherwise make that information available to others.

SECOND, please bear in mind that these four attached legal papers are the work of law students which have not been corrected or edited in any way.  Thus, while most of the information should be accurate as well as useful, there may be some small errors.
 
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Action on Smoking and Health (ASH)
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Dedicated to Mr. and Mrs. Warren Wells