memo -ASH format

							 Briefing on the evidence base and ASH Scotland conclusions regarding the definition
                  of smoking materials in the current draft legislation

This briefing paper was prepared ahead of the stage 2 debate on the Smoking, Health and
Social Care (Scotland) Bill on 14th June 2005, and was submitted to the Health Minister by
ASH Scotland. At that debate in the Health Committee, Stewart Maxwell MSP moved an
amendment to capture non-tobacco lit and smoked products in the primary legislation. This
was supported by the Executive, accepted by the Health Committee and adopted ahead of the
stage 3 vote in Parliament.

The legislation as currently framed captures lit, smoked tobacco products or products
containing tobacco. Based on the evidence and considerations outlined below, we recommend
that consideration be given to amending the legislation to capture a broader definition which
would include non-tobacco cigarettes and loose non-tobacco smoking materials.

The main arguments are as follows, explained in further detail and with references below.

    1. Second-hand smoke from non-tobacco cigarettes poses a health hazard to those who
       are exposed
    2. The wider public health aims of the legislation – to denormalise smoking with a view to
       reducing uptake and to support smokers who are trying to quit – will be best served by
       a wider definition
    3. A narrow definition may undermine the health message that is the basis for the
       legislation
    4. Omitting non-tobacco cigarettes from the legislation leaves a loophole that is likely to
       be exploited by opponents
    5. Implementation will be easier with a level playing field
    6. We are aware of no documented legal challenges based on the inclusion or exclusion
       of non tobacco cigarettes
    7. There is one known instance of (state) legislation adopting a narrower definition, and
       two known instances of (state and national) legislation being subsequently broadened
       to capture non-tobacco cigarettes. No legal challenges ensued that we are aware of.


1. Second-hand smoke from non-tobacco cigarettes poses a health hazard to those
who are exposed.

The main components of tobacco that are of concern with regard to active smoking are
carbon monoxide, tars and nicotine. Nicotine has impacts on the metabolism and circulatory
system but is mainly of concern in this context due to its ability to addict the smoker.

With secondhand smoke, the main concerns are exposure to levels of carbon monoxide and
respirable particulate matter. While air nicotine metabolised as cotinine provides a marker for
measuring exposure to tobacco smoke, the nicotine is not present in such quantities as to
present health concerns. The second-hand smoke from herbal cigarettes contains carbon
monoxide and particulate matter.

Peer reviewed and published evidence on non-tobacco cigarettes is sparse, mainly because
these are smoked by a tiny minority of people. However, a study of herbal cigarettes published
in the Lancet in 1999 demonstrated a higher level of carbon monoxide produced by burning
                                                                               1
vegetable based cigarettes compared with emissions from regular cigarettes while another
study to determine the tar, nicotine and carbon monoxide in the mainstream smoke of
selected international cigarettes showed that a brand of herbal menthol cigarette which did not
contain detectable levels of nicotine, yielded mainstream smoke containing 9.8 mg of tar per
                                                                             2
cigarette, and substantial amounts of carbon monoxide (16.5 mg/cigarette) . This backs up
earlier research in Australia, which suggested that tar and particulate matter were present in
                                                               3
non-nicotine cigarettes at similar levels to tobacco cigarettes .

Extensive research references are available to demonstrate the harmful health impacts of
inhaled carbon monoxide, and of tars in the form of respirable particles.
2. The wider public health aims of the legislation – to denormalise smoking with a view
to reducing uptake and to support smokers who are trying to quit – will be best served
by a wider definition.

In addition to the direct impacts of second-hand smoke on health a subsidiary aim of this
legislation is to denormalise smoking with a view to providing supportive environments for
smokers who are attempting to stop smoking, and to reduce the social cues which lead young
people to take up smoking. This aim will be strengthened by capturing all forms of cigarette in
the definition.

In California it has been suggested that the psychological reinforcement offered by herbal
                                                                               4
cigarettes may act as a primer to initiating young people into tobacco smoking . This is in line
with research showing that even the use of branded candy cigarettes can promote initiation
                                          5
into cigarette smoking by young people .

3. A narrow definition may undermine the health message that is the basis for the
legislation

Few if any reputable doctors would seriously advocate smoking herbal cigarettes as a
treatment of choice for asthma or smoking cessation. It may be difficult for people to
understand why legislation allows them to smoke herbal cigarettes but not tobacco ones. As
the main known difference between the two is the presence of nicotine, this could unfairly give
the impression that nicotine is the major health concern – with attendant harmful
consequences for the acceptance of appropriate nicotine replacement therapy as part of a
planned smoking cessation programme.

4. Omitting non-tobacco cigarettes from the legislation leaves a loophole that is likely
to be exploited by opponents

The tobacco industry’s strategies to counter clean air legislation in general show remarkable
similarity when international examples are compared (working through hospitality industry front
groups, claiming 30% job losses, majoring on freedom of choice etc). However in Ireland a
relatively new tactic was observed to generate embarrassing publicity using the loophole
afforded by the exclusion of herbal cigarettes.

Before legislation came into force, cigarette machine vending operators said they were
planning to important thousands of herbal cigarettes that would be marketed, and could be
smoked legally, in workplaces. They held a promotional photo call in a city centre pub with a
couple of models smoking herbal cigarettes on the eve of implementation.

These plans were criticised by the Irish Cancer Society, which condemned herbal cigarettes
                                                          6
as a health risk and ineffectual aid to smoking cessation . The Irish Pharmaceutical Union
later advised its members that the sale of herbal cigarettes from pharmacies could no longer
be regarded as ethical, as safer methods of assisting people to stop smoking are now widely
         7
available .

In the early days following implementation, there were reports of herbal cigarettes being used
                                                       8
as a ‘clever ruse’ to confound inspectors and bar staff .

In Scotland we have already seen the close involvement of cigarette vending machine
manufacturers in campaigns to oppose clean air legislation. The Freedom2Choose campaign,
                                            th
which was launched in the Doublet Bar on 8 September 2004 featured as Scottish
spokesman Mr Liam Stratton, the general manager of a wholesale tobacconists and vending
                             9
machine operator in Glasgow . The Freedom2Choose campaign itself was started by Rod
Bullough, managing director of Blackpool-based tobacco vending machine supplier
           10
Duckworth . It seems likely that they would seek to exploit this loophole, with a view to taking
the public debate away from a health agenda and back to a pro-choice one.

5. Implementation will be easier with a level playing field
                          8
As has earlier been noted , opponents of the clean air legislation in Ireland encouraged
smokers to light up with herbal cigarettes to undermine the legislation and seek to confound
inspectors. There have been some similar reports from America, for example from Delaware,
where a bar owner selling herbal cigarettes claimed he assumed all patrons lighting up were
                                 11
smoking non-tobacco cigarettes .

In Scotland, proprietors could claim immunity from prosecution simply by making the
assumption that all customers lighting up are using herbal cigarettes (particularly if they have
previously restocked their vending machines with herbal cigarettes). For an individual to be
fined or prosecuted it would be necessary to prove prove that the cigarette was a tobacco
cigarette, rather than a herbal one or any other type. In practice this could render the
legislation extremely difficult and expensive to enforce.

6. We are aware of no documented legal challenges based on the inclusion or
exclusion of non-tobacco cigarettes

We are not aware of any reports of legal challenges to clean air legislation anywhere, based
on either the inclusion or exclusion of non-tobacco cigarettes.

Speaking at the Scottish Licensed Trade Association conference in January 2005, Imperial
Tobacco’s Industry Affairs Manager for the European Union suggested that the tobacco
industry has been singled out by governments for unfair treatment and regulation. It seems
possible that the omission of non-tobacco cigarettes from this legislation could lead to a legal
challenge on the basis that the law unfairly favours smokers or manufacturers of one type of
cigarette (herbal) and discriminates against those who favor or produce another type of
cigarette (tobacco).

7. There is one known instance of (state) legislation subsequently adopting a narrower
definition, and two known instances of (state and national) legislation being
subsequently broadened to capture non-tobacco cigarettes. No legal challenges
ensued that we are aware of.

The Florida Clean Indoor Air Act that passed in 1985 did not mention tobacco for two reasons:
a recognition that other substances than tobacco are smoked and a recent defense that had
been made in Miami, Florida, where a defense lawyer had demanded a laboratory analysis of
the substance in question. This state law was sucessful for fifteen years and appears not to
have been legally challenged, although when new legislation was recently introduced the word
                                                                         12
'tobacco' was explicitly used. The reasons for this decision are unknown .

The Nebraska Clean Indoor Air Act law mainly prohibits smoking without mentioning tobacco,
although it refers to tobacco in the context of environmental tobacco smoke as follows: 'The
proprietor or other person in charge of a public place shall make reasonable efforts to prevent
                                                                          13
smoking and minimize the presence of environmental tobacco smoke...'

We are aware of two instances of legislation being subsequently broadened to capture non-
tobacco cigarettes, in the state of Queensland, Australia and in New Zealand.

The State of Queensland, Australia, passed amendment of the Tobacco Products (Prevention
of Supply to Children) Act 1998. This amendment was designed to restrict children's access to
non-tobacco smoking products such as herbal cigarettes and non-tobacco loose smoking
blends. This amendment was moved by the launch of a non-tobacco herbal cigarette brand,
Ecstacy, which raised concerns regarding the possibility of young people smoking this as an
alternative to cigarettes. The notes state:
"As a result of research that has been undertaken in Australia and overseas, it has been
established that the deliberate inhalation of smoke from the combustion of any matter is
injurious to health, whether or not the smoking compound contains addictive substances such
as nicotine. Furthermore, the smoking of non-tobacco products, such as herbal cigarettes,
leads to at least a similar degree of exposure to carbon monoxide and tar as conventional
            12
cigarettes."
In December 2003 the Ministry of Health in New Zealand passed the Smoke-free
Environments Amendment Act 2003 to the existing Smoke-free Environments Act 1990. This
made a number of amendments to existing legislation. Amongst them it included herbal
smoking products in smoking bans, and prohibited the supply for tobacco or herbal smoking
products in a public place to under 18-year-olds. The Ministry noted that herbal cigarettes are
sometimes promoted as a ‘safe’ non-addictive alternative to tobacco, but that they may
contain similar levels to tobacco products of harmful substances such as carbon monoxide
                                                                   13
and tar, which may contribute to cancers and respiratory diseases.

Conclusion

We conclude that the proposed legislation would be strengthened by a more comprehensive
definition that captures all smoking, but with specific reference to environmental tobacco
smoke.


References

1. Groman, E. et al. 1999. A harmful aid to stop smoking. The Lancet. 353(9151): pp.466-467.
2. Calafat, A.M. 2004. Determination of tar, nicotine, and carbon monoxide yields in the
mainstream smoke of selected international cigarettes. Tobacco Control. 13(1): pp.45-51.
3. Gourlay SG and McNeill JJ. 1990. Anti-smoking products, Medical Journal of Australia.
153:pp.699-707
4. Buchting, F. 2000. Herbal cigarettes: tobacco starter kits for minors. TRDRP (Tobacco
Related Disease Research Programme) Newsletter. [online] 3(3): pp. 1,2,6-7. Available from:
http://www.trdrp.org/docs/newsletters/2000/nslttr1100.pdf [accessed 11 April 2005]
5. Klein, J. et al. 2000. Do candy cigarettes encourage young people to smoke? BMJ 321:362-
365
6. Condon, D. 2003. Plans to sell herbal cigarettes in pubs criticised. IrishHealth.com [online].
Available from: http://www.irishhealth.com/?level=4&id=5397 [accessed 11 April 2005]
7. Irish Pharmaceutical Union. 2004. PSI says sale of herbal cigarettes in pharmacies no
longer ethical. March 23. Available from: http://www.ipu.ie/index.asp?locID=16&docID=26
[accessed 18 march 2005 but now archived – available from ASH Scotland information
service or IPU]
8. For example in Mayo, see: http://www.castlebar.ie/news/smoking-ban.shtml [online]
9. Opponents of ban on smoking launch campaign to stop 'political suicide'; James Doherty,
Scotsman. [online] Thu 9 Sep 2004
http://news.scotsman.com/topics.cfm?tid=663&id=1060272004 [accessed 11th April 2005]
10. From Freedom2Choose website, http://www.freedom2choose.org.uk/news_1.htm [online]
[accessed 11 April 2005]
11. Clarke, R. 2003. As the smoke clears. BBC News Online. Available from:
http://news.bbc.co.uk/2/hi/americas/3056745.stm [accessed 11th April 2005]
12. From personal email communication, Jack Cannon, 18/04/05, former Member of the
Board of Directors for The American Lung Association of Florida, former Member of the Board
of Directors for STAT (Stop Teenage Addication to Tobacco), currently serving on the Lay
Advisory Board for FAMRI (Flight Attendants Medical Research Institute)
13. From personal email communication, Mark Welsch, President of GASP (Group to Alleviate
Smoking Pollution) April 18, 2005 quoting Laws 1979, LB 344, § 9; Laws 2003, LB 45, § 1.
Website http://www.SmokeFreeNebraska.org
14. Queensland Government. 1999. Health Legislation Amendment 1999: explanatory notes.
[online] Available from:
http://www.legislation.qld.gov.au/Bills/49PDF/1999/HealthLegAmdB99Exp.pdf [accessed 11
April 2005]
15. Ministry of Health, New Zealand. 2003. Smokefree law in New Zealand. [online] Available
from: http://www.moh.govt.nz/smokefreelaw [accessed 11 April 2005]



Last updated 28/06/05