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Bars Keep Right To Host Smokers

Jan 7th, 2008
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Bars keep right to host smokers ( SCMP 6 Jan)

Mary Ann Benitez – Jan 06, 2008

A year after smoking was banned in public places, only one of 1,300 entertainment establishments granted exemption from the law until mid-2009 has lost that status.

Post 97 in Lan Kwai Fong lost its exemption 10 days ago after the Tobacco Control Office (TCO) deemed it to be a restaurant, meaning the ban should apply.

Six types of venues can apply to be exempt from the ban until July 1, 2009: bars that do not admit anyone under 18, mahjong clubs and parlours, commercial bath houses, massage establishments and nightclubs.

Since late 2006, the Tobacco Control Office said it had received about 1,500 applications for exemption, of which more than 1,280 were granted.

Delisted establishments may appeal to the Appeal Board within 14 days of losing their exemption.

Post 97 said it would not appeal. Its sister bars, La Dolce Vita and Club 97, are exempt from the ban.

Jamie Higgins, general manager of Post 97, was frank: “We are a restaurant, and we are not entitled to allow people to smoke. That is the law, in fact we were lucky to get away with it for as long as we did.”

He said that despite knowing the venue was a restaurant, they still applied for an exemption.

“Under the new law, so many restaurants and bars were applying for it, so we thought it would be easier to apply for it and then decide later on,” he said.

Mr Higgins added: “If anything, what the smoking ban will do is to bring us back more business at the weekend because children weren’t allowed to come to the restaurant because people were smoking.”

The TCO said: “We collect intelligence on non-compliance from various sources and upon receipt of such information, will investigate each and every case accordingly.”

Legislators have said the smoking ban is difficult to enforce because the TCO lacks inspectors.

Yesterday, anti-tobacco lobbyists wrote to legislators urging them to press the administration to “rescind these ludicrous politically motivated smoking exemptions”.

James Middleton of Clear the Air said there should be no exemptions. “To do otherwise is signing the death warrants of the staff and is encouraging our youth to smoke,” he said.

Cigarette Consumption Up Despite Smoking Ban in Hong Kong

Jan 2nd, 2008
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Smokers puff 12m more each month after ban

Cigarette consumption up despite limit on smoking areas

Scarlett Chiang and Mary Ann Benitez – SCMP Jan 02, 2008

A year after the smoking ban was introduced in most public places, more than 12 million more cigarettes a month are being smoked in the city.

According to the Customs and Excise Department, the city consumed an average of about 289.67 million cigarettes per month last year, or about 14.5 million packs, while the average monthly consumption in 2006 was 277.65 million. Census figures for the end of 2006 showed the city had about 840,000 smokers.

Medical sector legislator Kwok Ka-ki said the increase showed the smoking ban was not motivating people to quit smoking. “I think the smoking ban can prevent second-hand smoke in public places,” he said, “but to motivate people to quit, the government still has a long way to go.”

Anti-smoking campaigner James Middleton of Clear the Air said the partial smoking ban had “no chance of success as long as [people] can continue to smoke in bars and restaurants that are granted these pathetic deferral exemptions”.

Mr Middleton said it was “business as usual for the tobacco companies and smokers alike”.

But the Tobacco Control Office insisted the ban was working.

Smoking is not allowed in indoor workplaces, restaurants, sports stadiums, parks and playgrounds or on beaches. But six types of establishments, including bars, nightclubs and mahjong parlours, have been given exemptions until June 30, 2009.

Anthony Hedley, chair professor of the department of community medicine at the University of Hong Kong, said the city’s growing population could account for the rising figures but added that so long as the prices of cigarettes stayed low, consumption would remain high.

“The price of cigarette and tobacco duty has not increased for seven years,” he said.

“The low price is the biggest driver of consumption. I am convinced this is because of long-term negotiations between the government and tobacco companies.”

The Tobacco Control Office has issued 3,360 summonses, including 998 at amusement game centres, 565 at food premises, 336 at markets, 315 at shops, 259 in shopping malls, 236 in parks, 139 on backstairs and 512 at other indoor public places.

As of November 30, about 1,300 people had been convicted, paying fines from HK$50 to HK$1,500.

Christine Wong Wang, head of the Tobacco Control Office, said: “The majority of the public, including some smokers, have shown appreciation of the statutory smoking ban, and voluntary compliance remains by and large the established norm.”

Federation of Restaurants and Related Trades vice-chairman Lock Kwok-on said restaurant business was hurt in the first six months of the ban but had steadied as customers became accustomed to it and more considerate in the second half of the year.

Many customers now were willing to step outside to smoke when told of the ban.

Dr Wong said the main aim of the ban was to protect people from second-hand smoke, but it may also have motivated more smokers to quit.

A smoking cessation hotline (1833183) set up by the Department of Health to counsel smokers had handled at least 5,800 calls since January last year – about 70 per cent higher than the previous year, she said.

But Dr Kwok said the department’s promotions were not enough to counter increased tobacco marketing towards teenagers since the introduction of the ban.

“A tobacco company will offer free delivery if you buy only two packages,” he said.

“Who needs delivery services to buy two packages of cigarettes? It must be targeting teenagers who cannot get them in a shop.”

Hong Kong Smoking Ban

Dec 20th, 2007
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How do you feel about the smoking ban after a year?

Updated on Dec 20, 2007 SCMP

The “smoking ban” is a farce that panders to the business whims of the Liberal Party.

Any licensed premises wishing to get an exemption can do so until July 1, 2009, by simply filling out a form and applying to our “health department”.

This ludicrous exemption is not only unjust under any sensible, fair competition law, it obviates the total idea of the anti-smoking legislation, which is to protect the health of catering workers forced to breathe the equivalent of a packet of cigarettes a day.

Meanwhile, their employers remain liable under existing workplace health and safety laws for not keeping the workplace safe from dangers to the health of the workers.

The slow-burning side-stream smoke from the tip of a cigarette is four to six times more toxic than the smoke inhaled by the smokers, and this comprises 85 per cent of the cigarette smoke in a room at any one time.

A University of Hong Kong study shows passive smoking kills an average of 1,324 innocent people a year of the 6,000-plus tobacco deaths in Hong Kong.

James Middleton, Clear the Air Hong Kong

Smoke Pollution at Water Margin, Discovery Bay

Nov 26th, 2007
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This letter was sent by Nigel Bruce, a member of  Clear The Air Hong Kong, to Lewis Ho and cc’ed to Douglas Louden of Hong Kong Resorts International Ltd in reference to smoking in Discovery Bay’s Water Margin Complex.

Dear Mr. Ho,

You will have seen the article in Sunday’s SCMP. The article omits to mention that an average of 60% of Water Margin tables are outdoors, and rather underestimates the number of Discovery Bay citizens who are fed up with dining through a pall of someone else’s smoke. As I have mentioned, the attraction of the Water Margin lies in its outdoor view and ambience – we know we can sit indoors to escape smoke pollution.

I happen to be a Clear The Air member who has been seeking discussion rather than confrontation, and who has written to you twice to seek clarification on HKRI’s environmental policy re. the combination of smoking and dining it allows to continue on such a large scale.

But I have yet to receive a reply.

I refer in particular to my question:

Also, when you say: “Having said that, however, we would encourage the individual restaurants to allocate non-smoking areas within their leased premises on a voluntary basis so that both the smoking and non-smoking population can enjoy the superb Water Margin outdoor experience”, does this mean that you have not actually entered into any discussions with your tenant restaurants about their smoking policies?

The restaurants in the Water Margin seem to be offering to discuss compromise (as well as taking legal action against Clear The Air!) – why then does Management not take a lead and open discussions with them, as you suggest they might in your reply of 16th October?

Kind regards,

Nigel Bruce

Smoke Free Al Fresco in Discovery Bay

Nov 25th, 2007
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See a letter sent to the Food and Environmental Hygiene Department before this article was written: Water Margin OSA (Outdoor Seating Area) Air Quality and their reply here: Objection Against Outdoor Smoking in Discovery Bay Restaurants

Published in the SCMP on the 25th of November 2007:

Disco Bay eateries feel anti-smokers’ wrath

Barclay Crawford

Anti-smoking campaigners have vowed to continue their action against the popular al fresco dining area Water Margin in Discovery Bay if restaurants do not stop smokers lighting up.

Restaurant owners say lobby group Clear the Air’s stubborn stand – the group has refused to negotiate on the issue and did not inform owners before appealing against their licences – is against the wishes of residents and if successful would see 150 jobs lost.

But the group says it has the law on its side and will keep the pressure on until restaurants ban smoking in outside dining areas.

Clear The Air contacted the Sunday Morning Post after learning that residents had managed to stop restaurants above Kowloon Station opening outdoor dining areas.

The group objected to outdoor seating licences for the Water Margin restaurants to the Food and Environmental Hygiene Department on the grounds that smoking in outdoor venues was “an environmental nuisance” to workers, passers-by, children and non-smoking patrons.

“It’s unacceptable that people should be smoking in that area where there are so many children,” James Middleton, from Clear the Air, said last week. “We will drop our objection if they ban smoking.”

But Greg Walker, the manager of Koh Tomyums, said restaurateurs were considering legal action against Clear the Air.

Mr Walker, who said he was forced to close a Wan Chai restaurant after revenue fell when the government banned smoking indoors this year, said the group was twisting regulations to achieve its aims.

“We really object to the way this has been done. They don’t come to us first, they just complain about our licences,” he said. “We would rather approach this in a low-key way and have patrons ask to move if someone is smoking, or ask the smoker to sit somewhere else. We don’t want social change done on our bill.”

James Norton, a regular at Hemingway’s, said Clear the Air was out of step with the rest of the community in Discovery Bay. “They are zealots and most of us do not welcome their behaviour and actions either here or in the rest of Hong Kong,” he said.

Smoking in Open Air Public Places

Nov 21st, 2007
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Clear the Air contends that under existing Hong Kong laws any person who smokes in any open air public place commits several possible offences in addition to the legal obligations of employers and the occupiers of premises under the Occupational Safety workplace legislation.

Under the Public Health and Municipal Services Ordinance section 2, it is an offence to litter in public where “deposit”, in relation to litter or waste, includes to cast, throw, drop, discharge, scatter or blow such litter or waste; and “litter” includes: any dirt, dust, ashes, paper or refuse; any rubbish or debris; any other offensive, noxious or obnoxious matter; any substance likely to constitute a nuisance.
Smoking causes litter and ash falls to the ground and into the air as the cigarette burns. The smoke is lethal, offensive and obnoxious, and causes a nuisance to non-smokers in public places. Dropping butts causes litter and is an obvious offence.

Under the Air Pollution Control Ordinance section 10, “nuisance” includes an obnoxious event set out in section 10(2)(h) that includes the deposit of dust or particles of any kind; an objectionable odour; irritation of the eye, nose or skin or any other sensory discomfort.
Cigarette smoke in public places is obnoxious to non-smokers, causes the deposit of dust or particles, an objectionable odour to non-smokers and scientifically proven studies show irritation of the nose , asthma attacks and sensory discomfort.

Under the Public Cleansing and Prevention of Nuisances Regulations section 4, no person shall deposit or cause or permit to be deposited any litter or waste on or in any street or public place.
We have yet to see anybody holding a lit cigarette in a portable container to prevent the dust, ash and debris from being deposited in the air, street or public place.

Under the Air Pollution Control Ordinance section 2, “air pollution” means an emission of air pollutants which either alone or with another emission of air pollutants is prejudicial to health; or is a nuisance.
The lethal dangers to health of tobacco smoke are documented and scientifically proven beyond contest , the smoke is a major nuisance and air pollutant and highly prejudicial to health of innocent persons nearby.

Under Chapter 132X Section 10 Food Business Regulations it states: ‘Every person engaged in any food business shall, while so engaged, take all such steps as may be reasonably necessary to protect the food from risk of contamination or deterioration, and in particular, without prejudice to the generality of the foregoing, no person shall- (a) so place, or cause, suffer or permit any other person so to place, any open food as to involve any risk of contamination’
Allowing smoking in restaurants whether open air or otherwise will allow the highly toxic micron sized chemicals in cigarette smoke to contaminate any served open or loosely covered food.

A summary of a recent Stanford University study on Outdoor Tobacco Smoke is attached herewith for your study.
“Our results demonstrate that Outdoor Tobacco Smoke can be high during periods of smoking in locations where persons are near active smokers.
Therefore, it is possible for OTS to present a nuisance or hazard under certain conditions. Examples of scenarios where OTS levels might be high include eating dinner with a smoker on an outdoor patio, sitting at a table next to a smoker at a sidewalk cafe, sitting next to a smoker on a park bench, or standing near a smoker outside a building.

Children who accompany a smoking parent or guardian may experience substantial exposure.

Outdoor restaurant or pub workers who spend a significant portion of their time within a few feet of active smokers are also likely to receive relatively large total OTS exposures over the course of a day, possibly exceeding the EPA 24-hr health standard for fine particles.
If one is upwind from a smoker, levels most likely will be negligible. However, if the smoker’s position changes or one spends time downwind from a smoker, then moving to a distance of 2 m can reduce the likelihood of experiencing elevated particle exposure because of OTS. Future studies should measure OTS levels for dynamic situations with multiple smokers, including continuous measurements of personal OTS concentrations or biomarker levels for workers in outdoor locations.

Support for health-based OTS bans may lie in a potential acute effect on susceptible populations.
Short term OTS exposures might be life threatening for high risk persons, because the human cardiovascular system is very sensitive to secondhand smoke.(31)
A recent before-and-after smoking ban study showed a decreased chance of myocardial infarction when a ban was in place,(32 ) which suggests that there is an acute risk associated with SHS exposure for persons at increased risk of coronary heart disease or with known coronary artery disease.(33)”

Real-Time Measurement of Outdoor Tobacco Smoke Particles
Neil E. Klepeis, Wayne R. Ott, and Paul Switzer
Stanford University, Stanford, CA

Objection Against Outdoor Smoking in Discovery Bay Restaurants

Nov 12th, 2007
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The following letter was sent in reply to concerns by Clear The Air over smoking in the outdoor seating areas of restaurants in Discovery Bay:

12 November, 2007
 
Dear Mr. James Middleton,
 
Objection against Smoking in the Outside Seating Accommodation of Restaurants at Water Margin Complex, Discovery Bay
 
 
Thank you for your emails dated 18.8.2007, 19.8.2007, 12.9.2007, 17.10.2007 and 24.10.2007 concerning the captioned.
 
2.         Both applicants and licensees of the food premises in the Water Margin Complex have intention to apply for Outside Seating Accommodation at the location.  Some applications have been received and under process by our Licensing Section.  Your views have been conveyed to the Licensing Section for information.
 
3.         Our staff will take out appropriate enforcement action should any contravention of laws witness on the spot.
 
4.         Your concern on smoking at the captioned location has also been conveyed to the Tobacco Control Office and Environmental Protection Department for parallel action.
 
5.         For enquiries, please feel free to contact the undersigned or our Health Inspector, Mr. LEE Yuk-chun, at 2852 3142.
 
 
 
Yours faithfully,
 
 
(WONG So-fan)
for Director of Food and Environmental Hygiene

Water Margin OSA Air Quality

Oct 24th, 2007
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The following letter was sent to the Food and Environmental Hygiene Department over concerns of contamination due to smoking in the outdoor areas of restaurants in Discovery Bay’s Water Margin complex. 

Dear Sir

We are informed the Water Margin OSA is continuing to be used daily by the restaurants since our initial complaint.

Neither have we received any update from you as promised in the letter.

We reiterate our objection under OSA guidelines for licences to be granted for OSA to these existing premises if smoking is allowed under our previously stated reasons copied below.

As regards an application for OSA – Outside Seating Accommodation guidelines :
http://www.fehd.gov.hk/howtoseries/forms/new/OSA%20Guide.Eng(4.2006).pdf

“The operation of OSA should not create any environmental nuisance (such as water pollution, air quality nuisanceand noise nuisance).”

It is quite clear that allowing smoking in partially enclosed and covered outdoor areas like this constitutes an environmental nuisance as regards air quality nuisance to workers , passers by using the walkway who are frequently also children and non smoking patrons alike.

Accordingly Clear the Air objects to any current use of the OSA whilst smoking is permitted by the licensees in the OSA area and to any subsequent application by them to include the OSA in their licences under these legal ‘air quality nuisance’ grounds.

In addition, food is carried through and deposited in the OSA to be served to customers :
4. Adequate measures should be taken to protect food from risk of contamination during conveyance to the OSA.

The micron sized particles of cancerous environmental cigarette smoke will pass through any type of food service cover and will also contaminate the food when placed on the tables of the OSA for consumption. None of these premises other than McSoreleys has a smoking deferral approval in place.

7. The licensee should comply with the provisions of the laws of Hong Kong

The podium has numerous parasols which constitute a cover or roof under Cap 371. As such under Hong Kong laws the employers have a legal duty to protect their workers from unsafe work environments; the lethal dangers of passive cigarette smoke are documented and proven beyond contest, even acknowledged on the major tobacco company websites. ” An employer who fails to maintain the workplace in a condition that is, so far as reasonably practicable, safe and without risks to health – intentionally, knowingly or recklessly – commits an offence and is liable on conviction to a fine of $200,000 and to imprisonment for 6 months.”   Chapter: 509 Title: OCCUPATIONAL SAFETY AND HEALTH ORDINANCE Gazette Number: L.N. 230 of 1998 Section: 6 Heading: Employers to ensure safety and health of employees Version Date: 01/06/1998

Allowing smoking in  partially covered area workplaces is definitely not a condition that is ‘safe and without risks to health.’

kind regards
James Middleton
Clear the Air

Cafe Duvet Smoking Experience

Oct 16th, 2007
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This letter was sent to Lewis Ho of Hong Kong Resorts International Ltd in regards to smoking concerns at Cafe Duvet in Discovery Bay’s Water Margin complex by one of Clear The Air’s members, Nigel Bruce. 

Dear Mr. Ho,

I was informed by a neighbour that the new Cafe Duvet has opened on the raised podium in the Plaza.

He told me he had to leave shortly after sitting down, as the cafe was full of people smoking. I was not surprised, as this was sadly to be expected, given your response to my earlier email (see below).

You said in that email: “we, as the landlord, are not entitled during the tenancy period to unilaterally impose extra conditions on the own use of the leased premises by the tenants”. But this is a new lease, and surely Management now had the opportunity to attempt to carry out a policy to protect residents’ health?

 I find it disappointing in the extreme that you are again failing to take an opportunity to pursue such a policy.

Also, when you say: “Having said that, however, we would encourage the individual restaurants to allocate non-smoking areas within their leased premises on a voluntary basis so that both the smoking and non-smoking population can enjoy the superb Water Margin outdoor experience”, does this mean that you have not actually entered into any discussions with your tenant restaurants about their smoking policies?

Regards,

Nigel Bruce

Smoking (Public Health) (Amendment) Bill 2005

Nov 10th, 2006
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James Middleton (a member of Clear The Air) has put in a big effort to inform the Bills Committe of relevant information regarding the Smoking Bill which was passed on 19th of October 2006:

November 10, 2006 11:02 AM Subject: Smoking (Public Health) (Amendment) Bill 2005

Dear Mr Middleton,

I am the legal adviser of the Bills Committee of the Smoking (Public Health) (Amendment) Bill 2005. I am pleased to inform you that the Bill was passed on 19 October 2006. I wish to express my gratitude for the materials you have sent to us. I read most of them and used the relevant parts in my research. After discussion for 6 months, finally the Government decided to abandon the grandfathering of Mild Seven and other trade marks.

Thanks very much.
Regards, Monna Lai ALA7

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