Last updated: September 17, 2019
Key Terms
Second Hand Smoke (or similar term)
Undefined key terms or ambiguous definitions can undermine the application of other substantive provisions of a law. For example, if it is not clear what is considered “second hand smoke” or “tobacco smoke”, this may impair the ability of the law to fulfill FCTC Art. 8 requirements.
A definition of “second hand smoke” or similar terms should be provided in accordance with the definition provided in the FCTC Art. 8 Guidelines.
The smoke emitted from the burning end of a cigarette or from other tobacco products usually in combination with the smoke exhaled by the smoker. (FCTC Art. 8 Guidelines para. 15)
Smoking or Smoke
Undefined key terms or ambiguous definitions can undermine the application of other substantive provisions of a law. For example, if it is not clear what is considered “smoking” or “smoke”, this may impair the ability of the law to fulfill FCTC Art. 8 requirements.
A definition of “smoking” or “smoke” should be provided in accordance with the definition provided in the FCTC Art. 8 Guidelines.
Being in possession or control of a lit tobacco product regardless of whether the smoke is being actively inhaled or exhaled. (FCTC Art. 8 Guidelines para. 17)
Public Place
Enclosed common area: a public or private place, accessible to the general public or for common use, totally or partially enclosed on any of its sides by a wall, partition, roof, awning or covering, whether of a permanent or temporary nature.
The definition of “enclosed common area” in the amended decree aligns with the definition of “public place” provided in the FCTC Art. 8 Guidelines. However, the Guidelines address “public place” and “enclosed” as separate concepts and terms, which is clearer than the amended definition. For more clarity, the terms “public place” and “enclosed” should be defined separately as in the FCTC Art. 8 Guidelines.
An area, permanent or temporary, that is accessible to the general public or for collective use by the general public regardless of ownership or right of access. (FCTC Art. 8 Guidelines para. 18)
Workplace
Collective work spaces: closed areas in any work place intended for simultaneous use by a number of people who perform their work there on a permanent basis.
The definition of "collective work spaces" does not align with the definition of "workplace" contained in the FCTC Art. 8 Guidelines. It is more limiting and less protective than the FCTC Art. 8 Guidelines definition because it applies only to permanent, and not temporary, work spaces that are simultaneously used by a number of people. A definition of “workplace” should be provided in accordance with the definition provided in the FCTC Art. 8 Guidelines.
An area, permanent or temporary, in which a person performs duties of employment or work, regardless of whether the work is done for compensation or on a voluntary basis, and includes private offices, common areas and any other area which generally is used or frequented during the course of employment or work. (FCTC Art. 8 Guidelines para. 20)
Public Transport
Forms of public transport such as aircraft, buses, and collective transportation vehicles are defined in the specified laws including: (1) Brazilian Aeronautics Code, Article 106; and (2) Brazilian Traffic Code, Annex I – Concepts and Definitions.
Forms of public transport such as aircraft, buses, and collective transportation vehicles are defined in several pieces of legislation. To ensure comprehensive coverage and interpretation of the law, a definition of “public transport” or similar terms should be provided in accordance with the definition provided in the FCTC Art. 8 Guidelines.
Any vehicle used for the carriage of members of the public, usually for reward or commercial gain. (FCTC Art. 8 Guidelines para. 22)
Tobacco Product
Smoking product: a manufactured product, whether it is a tobacco derivative or not, that uses leaves or extracts of leaves or other parts of plants in its composition, that is intended to be smoked, chewed or inhaled.
Tobacco derivative: any product manufactured for consumption that uses in its composition tobacco leaves, intended for smoking, inhalation or chewing, even if it is only partially composed of tobacco.
The definition of “smoking product” aligns with and is broader than the FCTC definition in that it does not require tobacco leaf as a component.
Any product entirely or partly made of the leaf tobacco as a raw material which is manufactured to be used for smoking, sucking, chewing, or snuffing. (FCTC Art. 1(f))
Indoor or Enclosed
Law No. 12.546 - Shared enclosed space: is considered to be a space accessible to the public, intended for simultaneous use by several people.
Decree No. 8.262 - Enclosed common area: a public or private place, accessible to the general public or for common use, totally or partially enclosed on any of its sides by a wall, partition, roof, awning or covering, whether of a permanent or temporary nature.
The definition of “shared enclosed space” contained in Law No. 12.546 is much broader than the definition of “indoor” or “enclosed” as provided in the FCTC Art. 8 Guidelines. However, the definition in the law may be too vague, particularly because it does not describe an enclosed space in terms of walls, sides, or a roof.
However, the definition of “enclosed common area” in Decree No. 8.262 addresses this shortcoming by establishing that such a space is enclosed by a wall/roof/other covering on any of its sides.
Taken together, these definitions align with definition of “indoor” or “enclosed” contained in FCTC Art. 8 Guidelines para. 19.
Any space covered by a roof or enclosed by one or more walls or sides, regardless of the type of material used for the roof, walls or sides, and regardless of whether the structure is permanent or temporary. (FCTC Art. 8 Guidelines para. 19)
