Although this term is not defined, a definition is not strictly necessary because the term is not used in the law or regulations. The law’s smoke free measures provide that “premises are smoke free,” rather than prohibiting “second hand smoke.” Therefore, a definition of “second hand smoke” is not necessary for interpretation of the law.
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)
(a) “[S]moking” refers to smoking tobacco or anything which contains tobacco, or smoking any other substance; and
(b) smoking includes being in possession of lit tobacco or of anything lit which contains tobacco, or being in possession of any other lit substance in a form in which it could be smoked.
The definition of “smoking” aligns with the definition provided in the FCTC Art. 8 Guidelines and its scope is more comprehensive than the FCTC Art. 8 Guidelines’ definition because it includes any lit substance that can be smoked, even if it is not derived from tobacco.
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)
Premises are “open to the public” if the public or a section of the public has access to them, whether by invitation or not, and whether on payment or not.
The definition of “premises open to the public” aligns with the definition of “public place” provided 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)
Place of work: premises are used as a place of work -
(a) if they are used by more than one person (even if the persons who work there do so at different times, or only intermittently), or
(b) where members of the public might attend for the purpose of seeking or receiving goods or services from the person or persons working there (even if members of the public are not always present).
Although “workplace” is not defined in the definitions section, Section 3 of the Order substantively covers what is considered a workplace. These substantive provisions align with the FCTC Art. 8 Guidelines definition of “workplace,” but they could be clarified by explicitly stating that common areas frequented during the course of employment constitute part of the workplace.
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)
Vehicle: includes any type of vehicle, train, vessel or other means of transport, except
(a) an aircraft; and
(b) any ship or hovercraft in relation to which regulations could be made under section 85 of the Merchant Shipping Act 1995 (c. 21) (safety and health on ships), including that section as applied by any Order in Council under section 1(1)(h) of the Hovercraft Act 1968 (c. 59).
The Order provides a definition of “vehicle” rather than “public transportation.” The definition of “vehicle” in the Order is narrower than the definition of “public transport” provided in the FCTC Art. 8 Guidelines because it specifically excludes aircraft and watercraft. To align with the FCTC Art. 8 Guidelines, the law should provide a definition of “vehicle” or “public transport” in accordance with the definition of “public transport” in the Guidelines.
Any vehicle used for the carriage of members of the public, usually for reward or commercial gain. (FCTC Art. 8 Guidelines para. 22)
premises are enclosed if they
(a) have a ceiling or roof; and
(b) except for doors, windows and passageways, are wholly enclosed either permanently or temporarily.
Substantially enclosed premises: premises are substantially enclosed if they have a ceiling or roof but there is –
a) an opening in the walls: or
b) an aggregate area of openings in the walls;
which is less than half of the area of the walls, including other structures that serve the purpose of walls and constitute the perimeter of the premises.
The regulations provide for a definition of “enclosed premises” and “substantially enclosed premises.” The smoking prohibition applies equally to both types of premises. Together, the definitions of “enclosed” and “substantially enclosed” provide less protection than intended by the Art. 8 Guidelines because they allow smoking in areas that are 50% enclosed, whereas the FCTC Art. 8 Guidelines call for a prohibition on smoking in areas with one or more walls and a roof. To fully align with the FCTC Art. 8 Guidelines, a definition of “indoor” or “enclosed” should be provided in accordance with the definition provided in the FCTC Art. 8 Guidelines.
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)
Technically, a definition of “tobacco products” is not necessary because the law does not prohibit smoking “tobacco products,” but rather prohibits “smoking tobacco or anything which contains tobacco, or smoking any other substance.”
Therefore, the law aligns with the requirements of FCTC Art. 8 Guidelines.
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))
Work: includes voluntary work.
The inclusion of voluntary work in the definition of “work” is significant because smoking is prohibited in places of work.
Roof: includes any fixed or moveable structure or device which is capable of covering all or part of the premises as a roof, including for example, a canvas awning.
The definition of “roof” is significant because the term is used in the definitions of “enclosed” and “substantially enclosed.”
Private dwelling: includes self-contained residential accommodation for temporary or holiday use and any garage, outhouse or other structure for the exclusive use of persons.
The definition of “private dwelling” is significant because the law prohibits smoking in a private dwelling under specified circumstances when the dwelling is used as a work place.