Document(s) 18 of 37

Historical evolution of smoking restrictions

It is amazing how times have changed. Smoking used to be everywhere. People smoked in the office, on elevators, on city buses, in restrooms, at staff meetings, in university classrooms. Everywhere. Doctors smoked in front of patients and permitted smoking in waiting rooms. A person recuperating from surgery in a hospital might find that the patient in the next bed was a heavy smoker. The stereotypical journalist chain smoked while pounding away on the typewriter. Television anchors on the evening news might be seen with a stream of cigarette smoke rising by their side. Dr Mary Jane Ashley of the University of Toronto recalls giving an after-dinner talk in a smoke-filled room at the 1968 annual meeting of the North Bay Tuberculosis and Respiratory Disease Association. Smoking occurred at CCS meetings and fund-raising events, even into the late 1980s.

That has changed substantially. By 1994, 39% of Canadians had a completely smoke-free workplace; a further 41% had some smoking restrictions in their working environment. However, the degree of protection varied by province: in Quebec only 25% of people had a completely smoke-free workplace.^[235]

Despite the improvement, a lot more progress needs to be made. It is one thing for an adult to choose to smoke, but it is another to force nonsmokers to smoke against their will. Unless indoor ETS is properly restricted, nonsmokers involuntarily inhale toxins and carcinogens. In this context, smoking is not strictly a matter of personal choice.

In Canada, some of the earliest smoking restrictions were a means of preventing fires or explosions. These restrictions were sometimes by order of the fire commissioner, sometimes by municipal bylaw. For example, in 1950 Ottawa prohibited smoking in retail shops with 10 or more employees. Some companies, such as those in the chemicals and food sectors, restricted smoking so that their product remained pure throughout the manufacturing process. The real drive for smoking restrictions started in the first half of the 1970s, when nonsmokers became more assertive about asking smokers not to smoke.

Interestingly, before — and after — smoking restrictions became popular, many restaurants and transit companies posted signs saying “cigarette smoking only” because customers were bothered by the smell of cigar and pipe smoke. Customers bothered by cigarette smoke were not treated so considerately.

In 1971, Air Canada divided seats on some flights into smoking and nonsmoking sections, putting nonsmoking at the front. This led to complaints from some smokers that they were being treated as second-class citizens because they had to sit “at the back of the bus.” In 1974, Air Canada changed its policy so that smoking seats were on one side of the aisle and nonsmoking seats were on the other. Not surprisingly, this revised policy was a massive failure and produced a litany of complaints from nonsmokers. The smoking section was moved back to the rear of the plane.

The ordeals of nonsmokers were making headlines. A taxi driver who banned smoking in his taxi was told by a Metro Toronto licencing commission official to permit smoking by passengers or he would lose his taxi licence.^[631] A student had to quit university because of smoking in the lecture hall.^[326] The Unemployment Insurance Commission docked 3 weeks of benefits from a man who stopped attending a retraining course because he could not tolerate the smoke. The Commission denied his right to appeal because there was “no principle of importance” at stake.^[123]

In 1973, North York, Ontario, prohibited smoking in supermarkets, and the Ontario municipalities of Pickering and Scarborough passed similar bylaws the following year. Soon, sprouting up across the country were dozens of local antismoking groups with names like Group Against Smokers’ Pollution (GASP) and Society to Overcome Pollution (STOP). GASP organizations were typically affiliated with the Tuberculosis and Respiratory Disease Association, now known as The Lung Association.

In 1973, the Canadian National Railway set aside nonsmoking areas on Rapido trains between Montreal and Toronto. In 1974, the Canadian Motor Coach Association made a voluntary recommendation that the first five rows of buses be nonsmoking.

Also in 1974, private-member’s Bill C-242 was introduced in the House of Commons by Liberal Ken Robinson, a Toronto MP, to provide nonsmoking sections in planes, trains, and intercity buses. The Bill, which was similar to one previously introduced by MP Mather, was approved at second reading, was applauded by Health Minister Marc Lalonde, and was the subject of hearings by the Health Committee, but as is the normal fate for a private-member’s bill, never received final approval or came to a third-reading vote. Before the Committee, CTMC took the unusual position of not opposing the bill. Perhaps it was too early for the industry to fully realize the implications of smoking restrictions.

One of the most successful antismoking groups at that time was the Ottawa – Hull Nonsmokers’ Association, an organization founded in 1973. Association members campaigned at a time when antismoking activity was hardly the norm. Edna Eisenberg, the Association’s first President, recalls that some people ridiculed her, saying she needed “psychological help.” In 1976, the Association mounted a strong campaign that led to the City of Ottawa passing Canada’s first real antismoking bylaw. Many members of City Council had been extremely reluctant, but a newspaper ad placed by the City to obtain public views prompted 306 letters, with 574 signatures in support and just 11 opposed.

The Ottawa bylaw prohibited smoking in the following places: patient-care areas; service counters in financial institutions and municipal offices; reception areas; elevators, escalators, and stairways; service lines; school buses; taxis if driver or passenger requests; retail shops except in restrooms, office areas, or lunch counters; indoor places of public assembly except in designated smoking areas; and nonsmoking sections of restaurants. Restaurants had to post a sign visible from the outside indicating whether they provided a nonsmoking area.

In 1977, the City of Toronto followed suit with a bylaw restricting smoking in several public places, including parts of hospitals. This was done despite the opposition of the Ontario Hospital Association. Perhaps a sign that antismoking was still in its infancy, the bylaw followed Ottawa’s example and specifically did not restrict smoking in restrooms.^[197] The victory followed 3 years of lobbying and was important because of the city’s large population and prominence and because of the media located there. Council approved the bylaw 21 to 0, in large part because of NSRA efforts. Mayor David Crombie, later federal Health Minister, described NSRA as

the most impressive and intelligent lobby I have ever known. The information they supplied was reliable and complete; they answered our objections even before we raised them; they showed a talent for reasonable compromise; they didn’t waste my time.^[327]

Among the critics of the new bylaw was former Health Minister LaMarsh, who wrote in her Toronto Star column that it was a “dumb law” because it would be unenforceable.^[351] LaMarsh’s predictions proved wrong. The bylaw was mostly self-enforcing.

By the 1980s, many more municipalities had passed public-place bylaws. Some bylaws started to include partial restrictions on smoking in restaurants, although many restaurants had already voluntarily created nonsmoking sections. Early bylaw requirements were modest, such as a minimum nonsmoking area of only 10% or 20%.

Perhaps prompted by the advent of public-place bylaws, more employers voluntarily restricted smoking in their workplaces. In 1986, Vancouver passed a bylaw covering smoking in workplaces. Later, some other municipalities would also adopt their own bylaws covering all parts of workplaces, not just the public portion.

A major factor driving the movement to restrict smoking was increasing knowledge of the harmful impact of ETS on the nonsmoker. In 1969, the Isabelle Committee had noted an increasing recognition of the rights of nonsmokers and recommended that “out of consideration for the majority of Canadians who do not smoke, a gradually increasing number of no smoking areas or sections be provided in places or facilities used by the general public.”[269, p. 2:88]

In 1972, the US Surgeon General raised the issue of second-hand smoke in his annual report. He concluded that

an atmosphere contaminated with tobacco smoke can contribute to the discomfort of many individuals. . . . The level of carbon monoxide attained in experiments using rooms filled with tobacco smoke has been shown to equal, and at times to exceed, the legal limits for maximum air pollution permitted for ambient air quality.^{[613, p. 7]}

In 1975, the Surgeon General concluded that

children of parents who smoke are more likely to have bronchitis and pneumonia during the first year of life, and this is probably at least partly due to their being exposed to cigarette smoke in the atmosphere.^{[614, p. 108]}

Also in 1975, during the House of Commons debate on Bill C-242, Health Minister Lalonde stated that

evidence indicates that individuals with asthma, allergies, advanced emphysema, or advanced coronary arterial disease can be seriously troubled by inhaling cigarette smoke, especially in closed environments over a period of time.^[349]

Apart from this evidence, reasons put forward for early antismoking bylaws included protecting nonsmokers from smoke-caused discomfort and irritations, such as headaches, coughing, watery eyes, smelly hair and clothes, and contact-lens problems. ETS was recognized as harmful to children with asthma. There was also an awareness that second-hand smoke has greater concentrations of toxic substances than mainstream smoke.

In the early 1980s, new studies substantially increased the knowledge of the health consequences of ETS. Some of the early studies found that nonsmoking wives with smoking husbands were at greater risk of lung cancer. In 1986, the US Surgeon General dedicated an entire report to ETS, concluding that “involuntary smoking is a cause of disease, including lung cancer, in healthy nonsmokers.”^{[604, p. 7]} In 1992, the US Environmental Protection Agency (EPA) completed an extensive examination of ETS. The EPA classified ETS as a group A (known human) carcinogen, thus placing ETS in a category with only a small number of other substances, such as radon and asbestos. The EPA concluded that ETS was responsible for lung cancer deaths in adults. In children, ETS caused bronchitis and pneumonia, worsened the condition of those with asthma, and was a risk factor in new cases of asthma.^[610] Although the EPA did not look at ETS as a cause of heart disease, there is evidence that ETS causes far more deaths from heart disease than from lung cancer.^[194]

New Canadian health warnings on ETS to be put on packages were adopted in 1993 in recognition of ETS hazards. In Canada, it has been estimated that more than 330 Canadians die annually from lung cancer caused by exposure to ETS.^[630] A 1994 survey found that 56% of Canadians are physically irritated in some way by ETS.^[238] ETS has also been linked to sudden infant death syndrome.^[609] Babies whose mothers are exposed to ETS during pregnancy tend to have reduced birth weights. Children exposed to ETS are at greater risk of impaired lung function; eye, nose, and throat irritation; and chronic middle-ear infections.^[232]

In adopting ETS restrictions, Canada has generally lagged behind the United States. By 1976, more than 30 states had some form of nonsmoking law,^[376] although many laws covered very little. In 1987, Beverly Hills became one of the first municipalities to completely ban smoking in restaurants. The ban was reversed 4 months later after a campaign engineered by the tobacco lobby. Industry front groups claimed that restaurant sales fell by 30% after the ban went into effect, but in fact a later study of sales-tax receipts showed that restaurant sales actually increased.^[195,535]

Later, many other California municipalities, including Los Angeles and San Francisco in 1993, banned smoking in restaurants. By the end of 1995, California, Vermont, and Utah had statewide laws completely prohibiting smoking in restaurants.

In 1994, the US Occupational Health and Safety Administration held hearings on a proposed rule that would prohibit smoking in virtually all workplaces, whether open to the public or not. This would include restaurants and bars. The only exceptions would be separately enclosed, independently ventilated rooms used for no purpose other than smoking. Needless to say, the tobacco industry campaigned hard to prevent adoption of such a rule.^[6] Even if the rule is adopted, the industry can be expected to launch a court challenge.

In Canada, it was not until 1987 that the first provincial law restricting ETS was in force. Surprisingly, the law was in Quebec, the province with the highest smoking rates in Canada.^[227] By the end of 1995, only 4 of the 10 provinces had provincial laws restricting smoking in public places, and only Ontario and Newfoundland had legislation applicable to smoking in workplaces, albeit with only partial restrictions. Most of the action has been at the municipal level: by 1991, at least 280 Canadian municipalities with a population greater than 10 000 had a bylaw restricting smoking.^[228] At the federal level, restrictions have been much stronger because of the Non-smokers’ Health Act. The Act severely restricts smoking, but only in the approximately 10% of workplaces regulated by the federal government. Such workplaces include banks, transport and telecommunications companies, and federal Crown corporations.

The campaign for smoke-free skies

Despite historic lagging behind the United States when it comes to ETS restrictions, Canada is a world leader when it comes to controlling smoking aboard airlines. In 1986, Air Canada introduced completely smoke-free flights on some of the routes in the Toronto – Ottawa – Montreal triangle. A 3-month experiment proved so successful that Air Canada increased the number of smoke-free flights. In 1987, Air Canada, with smoke-free flights to New York, became the first major airline to have smoke-free flights in the United States. Canadian Airlines International followed suit in the same year with some smoke-free flights to the United States. Also in 1987, the federal government prohibited smoking on all domestic flights under 2 hours, a move later followed by the US Congress. In 1988, Air Canada prohibited smoking on all its charter and scheduled flights in North America.^[10]

When the Non-smokers’ Health Act came into force on 29 December 1989, it prohibited smoking on all flights of Canadian air carriers except flights specifically exempted by regulation. The major airlines lobbied strenuously against a complete ban on smoking on all international flights, arguing that they would lose up to $90 million in revenue and that a ban would be unenforceable.^{[152,191,202,459]} Health groups joined with representatives of flight-attendant unions (led by tireless campaigner Carmen Paquin, an Air Canada attendant) to counter this lobby. This led to apparent victory when Labour Minister Jean Corbeil and Transport Minister Benoît Bouchard announced on 18 December 1989 that all domestic and international flights would be smoke free. Of course, when it comes to smoking, it is never over until it is over.

The airlines intensively lobbied the government. On 23 December, just days before the ban was to come into force, the government caved in and deferred the smoking ban on international flights to 1 July 1990. The complete ban on smoking on domestic flights, though, went into force as scheduled.

In June 1990, the government announced that smoking would be banned on international flights of 6 hours or less. On longer flights, the seating allocated to smoking would be phased out over 3 years. In 1993, the complete ban was deferred for another year. In 1994, implementation of the ban was again delayed, this time for 2 months, but only on flights to Japan.

Finally, in September 1994, Canada became the first country in the world to require that all domestic and international flights of its airlines be smoke free. Ken Kyle, Director of Public Issues for CCS, recalls that “it was only through persistent lobbying that the victory was achieved. Part of the argument we used was that a smoke-free flight would be a marketing advantage, not a disadvantage.” After the total ban was implemented, Canadian Airlines International actually increased the number of seats on its Japan – Canada routes. An Air Canada spokesperson said that revenues “had not been negatively affected” by smoking restrictions. Air Canada was saving about $900 000 a year on all its routes by not having to clean ashtrays, not to mention the further benefits of being able to extend the interval between deep cleanings of its airplanes to 9 months from 6.^[641]

In 1992, Canada sponsored a resolution that was adopted by the assembly of the International Civil Aviation Organization, a United Nations agency. The resolution urged countries “to take necessary measures as soon as possible to restrict smoking progressively on all international passenger flights with the objective of implementing complete smoking bans by 1 July 1996.”^[311] Although the resolution was not legally binding on countries, it set the desired international standard.

Adoption of the resolution did not happen by accident. It was preceded by a Campaign for Smoke-Free Skies Worldwide spearheaded by CCS and the American Lung Association. WHO also worked hard to gain support for adoption of the resolution.^[346,640]

In another move that may be copied elsewhere, Canada, the United States, and Australia entered a trilateral treaty in 1994 in which they agreed that flights between their countries would be smoke free. The treaty provides for the inclusion of other countries willing to sign the agreement.

Restaurants and bars

Although smoking restrictions are becoming more extensive, smoking is still permitted in many restaurants and bars. Smoke-free restaurants and bars are not yet as common in Canada as in the United States, but the number is increasing. In 1994 McDonald’s and other fast-food chains like Taco Bell and Subway made landmark decisions to go completely smoke free in corporate-owned outlets. A 1994 guide by the Airspace Nonsmokers’ Rights Society lists 550 completely smoke-free places to eat in British Columbia alone.^[11]

The need to ban smoking in bars and restaurants is all the more important because these places have high ETS concentrations, thus increasing the hazard. A study published in JAMA found a 50% increase in the risk of lung cancer among restaurant and bar employees.^[544]

Restaurateurs often oppose any smoking restrictions because they fear a loss of business; they argue that smoking restrictions should be determined by the marketplace. At one time, restaurants even opposed the early bylaws that created a 20% nonsmoking section in restaurants. After the nonsmoking sections were in place, though, it was business as usual, without the terrible sales consequences the restaurants had forecast.

A survey in California found that adult nonsmokers eat out as often as smokers, that more than two thirds of smokers do not feel the need to smoke when they eat out, and that a smoke-free restaurant ordinance would likely lead to an overall increase in restaurant business because nonsmokers would eat out more.^[476] Similarly, an Angus Reid poll in the Vancouver and Victoria areas in British Columbia found that restaurants would likely increase their business if there was a complete ban on smoking.^[15]

Restaurants are not justified in placing profit ahead of the health of their employees and customers. Would it be acceptable for a restaurant to refuse to serve a particular ethnic group because sales would be harmed? Is a restaurant justified in not complying with sanitary standards because of the extra cost? Of course not.

The impact of smoking restrictions

Smoking restrictions protect the health of nonsmokers (and smokers, who also breathe ETS). Smoking restrictions also decrease the social acceptability of smoking. This contributes to the desire to quit. As well, restrictions, especially in the workplace, decrease a smoker’s daily consumption, thus reducing the risk to health and increasing the likelihood an attempt to quit will be successful. Here is what a confidential Imperial Tobacco document (circa 1987) stated (emphasis in the original):

The shift to social pressure has also moved to high gear. Passive smoking has moved from a fringe issue, to by-laws, to the implementation of smoking restrictions in the work-place. Smoking restrictions have moved from abstract discussion to practice. This increasing social isolation of the smoker will not only increase his ill-ease with smoking, but will also have a measurable effect on daily usage rates resulting in overall industry losses [emphasis as in original].^{[304, p. 9]}

California researchers found that the implementation and continuation of a smoke-free work area was associated with a 26% reduction in per capita consumption among workers. Over time, a smoke-free policy led to quitting, especially among light smokers. When employees moved from a smoke-free work area to an area with fewer restrictions, their smoking increased.^[476] Several other studies have found that the introduction of work-place smoking restrictions is followed by lower smoking rates among workers.^[49,316,403]

A smoke-free workplace provides employers with a number of benefits, notably reduced costs from cleaning, maintenance, fire insurance, absenteeism, and sick pay. It has been estimated that among Canadian employees, absenteeism is 33%–45% higher for smokers than for nonsmokers.^[641] Eliminating ETS means that repainting is less frequently needed. Productivity will increase as smokers take fewer breaks, and nonsmokers will have a better working environment. A ban also decreases the risk of legal action against the employer by an employee or customer harmed by ETS.

Actions nonsmokers can take

Nonsmokers have a number of possible remedies to reduce involuntary exposure to ETS. In the workplace, perhaps with the assistance of their union representatives, nonsmokers can persuade management to voluntarily implement a nonsmoking policy. Nonsmokers can verify whether federal, provincial, and municipal laws are being enforced. Under provincial occupational health and safety legislation, workers usually have the “right to refuse” to work in unsafe circumstances. Some nonsmoking workers have invoked this provision to force their employers to ban smoking. In some circumstances, workers could file a grievance against the employer in accordance with a collective agreement.

In Ontario, a Medical Officer of Health has the authority to declare something a health hazard and to order removal of the hazard. Up to the end of 1995, this measure had not been used to control smoking.

The courts have sometimes provided a remedy. In cases dating back to 1984, a couple of judicial orders prevented some husbands from smoking in homes shared with their wives. In British Columbia, a tenant obtained an injunction to prevent a neighbour from smoking because the smoke was travelling between apartments. In 1988, an Ontario court terminated the visitation rights of a father who would not stop smoking in the presence of his 6-year-old asthmatic daughter.

The failure to ban smoking discriminates against several groups and thus may violate provincial human rights codes. Permitting smoking in the workplace discriminates against pregnant women. Persons with asthma and other disabilities face discrimination because, through no fault of their own, they are unable to remain in a smoky environment. In certain circumstances, legislative exemptions permitting smoking could be challenged under the Canadian Charter of Rights and Freedoms on the grounds of discrimination on the basis of sex or disability.

The tobacco industry responds

What has been the tobacco industry’s response to ETS? Tobacco companies deny the health consequences of ETS and work to oppose legislation, although in Canada the industry has not been as aggressive as in the United States. In 1978, a confidential research report prepared for the US tobacco industry warned that the ETS issue was “the most dangerous development to the viability of the tobacco industry that has yet occurred.”^{[507, p. 5]} The report recommended “developing and widely publicizing clear-cut, credible, medical evidence that passive smoking is not harmful.”^{[507, p. 6]}

A 1986 report prepared for Imperial Tobacco presented a strategy for dealing with second-hand smoke:

Should a decision be made to enter public debate, two assumptions lead to a recommendation that the passive smoking issue is used as the focal point. The first is that, of all the health issues surrounding smoking, it is the one which the tobacco industry has most chance of winning; that the evidence proclaimed by the anti-group is flawed. Secondly, and related to the first, is that it is highly desirable to control the focus of debate. A broad discussion of smoking and health can only lead to a series of barrages in areas which the tobacco industry would have extreme difficulty in defending. And offense should be the watchword.

Passive smoking has high relevance to the socially-concerned. An attack on the credibility of evidence presented to date may well provide the rational argument to soften their attitudes. At the same time, a halo would be created, bringing other undebated issues into question by inference, providing reassurance and reinforcement for the more emotionally-dependent health-concerned group [emphasis as in original].^{[125, p. 60]}

In seeking an advocate to make the case for the industry’s position, the report said “the challenge will be to find a sympathetic doctor who can be demonstrated to take a largely independent stance.”^{[125, p. 60]}

In 1987, during parliamentary hearings on the proposed Non-smokers’ Health Act, the industry brought up its normal troop of experts to deny that ETS was a demonstrated health problem. When the Ontario legislature was considering the Smoking in the Work-place Act, CTMC submitted a detailed brief refuting the alleged dangers of ETS. When the new law came into effect — prohibiting smoking in workplaces except in designated areas — CTMC wrote to employers suggesting that each desk be designated a smoking section. This was a deliberate attempt to undermine the effectiveness of the law.

To prevent the adoption of bylaws restricting smoking, the tobacco industry has funded local opposition. For example, in British Columbia in 1995, the industry funded the Lower Mainland Hospitality Industry Group to oppose proposed bylaws that would ban smoking in all restaurants and bars. A tobacco industry organizer traveled to the province to help establish the group, and CTMC provided the group with ongoing strategic advice.

The next chapter, on taxation and smuggling, describes far more serious industry efforts to undermine the effectiveness of an antitobacco strategy.

Document(s) 18 of 37