Full smoking ban seen difficult to justify

1. A fast-paced evolution

Macau depends entirely on gaming to survive. Gamblers tend to smoke and there has been smoking in gaming areas from 1849 until now. So maybe it would not be prudent to rapidly ban all smoking whatsoever in casinos. Such a measure, in the worst scenario, could send many gamblers away and be roughly the equivalent to suddenly closing several casinos, causing a significant decrease in revenue and a strong impact on public finances. But this is exactly where Macau is heading now.

How did we get here? The process was set in motion in 2011 by a new legal framework for the prevention and control of smoking, which at the time refrained from imposing a full smoke ban on casinos. The 2011 regulation stated that as a rule smoking is prohibited in casinos, but there could be smoking areas taking up to 50 percent of the total public areas of the casino, in accordance with technical requirements set by the Chief Executive. These regulated details such as the location and labelling of the smoking areas, their separation, the ventilation systems required to prevent smoke from spreading to non-smoking areas, and the air quality standards and their measurement.

This specific regulation for casinos came into effect a year after the main parts of the law, that is, on 1 January 2013. All sub/concessionaires successfully applied for the creation of smoking areas. The new law of 2011 was undoubtedly a positive step towards better quality of life, free from tobacco exposure. It evidently had financial costs, including an impact on the gross gaming revenue that is hard to quantify especially because it coincided with other negative factors affecting Macau gaming. But this was a cost that, as a society, Macau should accept.

However, the situation evolved rapidly. In fact, often the smoking areas were extremely thick with smoke and it may have occurred in some cases that the areas had so much smoke that not even smokers enjoyed being there. Casino workers complained loudly about exposure, arguing that staff rotation between areas with and without smoke was not sufficient.  In fact, from 1 January 2013 the debate only intensified. The 2011 law started a process instead of ending it. Further changes were proposed, with many calling for a total ban of smoking in casinos.

As a result, in 2014 the smoke ban was expanded. Smoking was prohibited in all mass market areas starting from 6 October 2014, except in small smoking-only lounges similar to those in airports.

It turns out that apparently this is still not enough. Less than a year later, a bill is pending in the Legislative Assembly, submitted by the Government on 9 July 2015, proposing amendments to Law 5/2011 so as to move towards a total ban. The matter is generating intense debate and, as a result, a period of public consultation was opened, to last until 30 September 2015. Final approval of the law may take place in 2016.

2. Controversial areas

To put the new regulatory impetus in context, some exaggerations were already present in the 2011 law. As a rule, smoking is allowed in outdoor areas on the street, in sidewalks, squares and public roads, as smoke is released into the atmosphere without restrictions. But there are exceptions.

In the rather controversial case of higher education institutions, it is forbidden to smoke in the entire campus, indoors or outdoors, except in narrow outdoor areas specifically demarcated by the academic institutions. This goes too far. There is no reasonable explanation for such demanding regulation against the exposure to smoke outdoors other than to simply make a moral point, something that laws should never do and is probably unconstitutional.

Smoking was totally forbidden in other outdoor areas: parks and gardens managed by public services and beaches where safety and monitoring are carried out by the public administration. This also goes too far. In outdoor areas smoke exposure is not, by definition, a problem. These cases may create cleanliness and tidiness issues, but such matters are already dealt with satisfactorily by general laws on littering.

In the bill currently pending there is also some exaggeration. It proposes expanding the notion of smoking beyond “combustion”, by including cases in which no smoke whatsoever may be produced. So-called “electronic cigarettes,” which are not covered by the 2011 law, will be expressly prohibited. This goes way beyond the goal of protecting third parties against smoke exposure, and is hard to justify.

The most visible amendment now proposed is to radically eliminate smoking in casinos in every shape or form, including the elimination of the small smoking-only lounges. These are just for smoking and have no gaming tables, no gaming machines or casino employees.

3. Questions of principle

The debate now taking place is mostly framed as a clash between public health and revenue, that is, as a trade-off between opposing policies: have more health by having less revenue, or the reverse. While these are relevant angles, it is reductionist to frame the problem in this manner, which forgets the most important perspective: the questions of law and principle, which are decisive.

A balanced position must be found, avoiding paternalism. No policy goal can be seen as absolute. The improvement of the population’s health, namely by measures aimed at decreasing the prevalence of lung cancer, is a sound policy everywhere. However, health cannot be imposed upon individuals against their will. There is freedom to have control over a person’s own body and life: as a general rule, people are free to deal with their bodies and lives as they see fit, provided that third parties are not harmed.

If harm is caused to innocent third parties by smoking then Government intervention becomes in principle legitimate. As John Stuart Mill wrote 156 years ago, “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others” (On Liberty, 1859). Smokers should not be allowed to impose their smoke upon those who do not want to smoke, turning the latter unwillingly into second-hand or passive smokers. People have the right to not have their health affected by third parties. There is, in this sense, a ‘right to not smoke’. But if nobody is affected by the smoke, Government intervention becomes questionable.

In this manner, health protection is not an overriding ground that would allow unlimited constraints to freedom. No law should aim at a full elimination of tobacco manufacture, sale and consumption: this would be unachievable in practice and wrong as a matter of principle.

It is therefore necessary to find a balance between smokers’ freedom and third parties’ right to health.

What seems to be lost in the current debate is a clear view of the just outlined harm principle, which is relevant to draw the lines, especially on (un)acceptable restrictions of personal freedom. Advancing the smoke ban too far is hard to explain or justify. It is not clear why universities, beaches or public parks were singled out as “semi-sacred” places where no smoke whatsoever can occur, even outdoors. The attack against electronic cigarettes is questionable, as most only produce water vapor, not smoke, and can effectively be a useful tool in helping smokers quit the habit.

In the case of casinos, it is easy to foresee massive breaches of an overly restrictive law that would ban even smoking-only lounges, with people illegally smoking quick cigarettes in any corner possible, such as inside the toilets, which would become the de facto smoking lounge given that it is impossible to enforce the law there, as already is visible.

The smoke lounges seem to provide a perfectly acceptable and balanced solution for the rights of both smokers and non-smokers. There are only smokers inside a lounge and therefore no employees or unwilling persons are unduly exposed. Current law does allow smoking lounges in the Macau airport, a place where passengers may spend many consecutive hours, much like what happens in a large integrated resort. Banning the smoke lounges in casinos and forcing smokers to walk out of what often is massive building would be a disproportionate and unnecessary measure that would simply make a moral point and not effectively increase the protection of anyone. Prohibitions need proper grounds and cannot be enacted just because someone has the power to do so. If imposed, a ban on smoking lounges would be quite problematic to justify. And probably would not resist detailed legal scrutiny.

 

* Jorge Godinho is a visiting professor at the Faculty of Law of the University of Macau, where he coordinates the Master and postgraduate program in International Business Law. Jorge joined the Faculty of Law as full-time assistant professor in 2004 and became an associate professor in September 2009. His current academic interest is now gaming law.