Last updated: May 20, 2020
Key Terms
Second Hand Smoke (or similar term)
The law does not contain a definition of “second hand smoke.” However, a definition of this term is not necessary for interpretation of the law because the law prohibits or restricts “smoking in enclosed public spaces” rather than prohibiting “exposure to second hand smoke.”
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
Smoking means willingly inhaling the smoke that emanates from burning tobacco contained in cigarettes, cigars, cigarillos and pipes.
The definition of “smoking” contained in Law No. 349 of 2002 does not align with the definition of “smoking” provided in the FCTC Art. 8 Guidelines. Under the definition provided in the law, a person is “smoking” if he/she is actively inhaling smoke from a lit tobacco product. However, under the Art. 8 Guidelines definition, a person is “smoking” if he/she is simply in possession of a lit tobacco product, regardless of whether he/she is actively inhaling. The narrower definition contained in the law could impede enforcement of provisions regulating smoking in public places.
To align with FCTC Art. 8 and the FCTC Art. 8 Guidelines, the law should contain a definition of “smoking” 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 public space means any space accessible to the general public or intended to be used by a community, regardless of ownership type or means of access, that has a roof or ceiling and is enclosed by at least two walls, regardless of the material used in construction or whether such construction is permanent or temporary.
Law No. 349 of 2002 contains a definition of “enclosed public space,” which combines definitions for “enclosed” and “public place.” The portion of this definition that defines “public space” aligns with the definition of “public place” contained 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
Enclosed space at a place of employment means any space that has a roof or ceiling and is enclosed by at least two walls, regardless of the material used in construction or whether such construction is permanent or temporary as defined in the Occupational Safety and Health Law No. 319/2006, as subsequently amended.
Workplace [Occupational Safety and Health Law, Art. 5(k)]: the place intended to house workstations on the premises of the undertaking and/or establishment and any other place within the area of the undertaking and/or establishment to which the worker has access in the course of his employment.
Law No. 349 of 2002 contains a definition of “enclosed space at a place of employment” that refers to the definition of “workplace” contained in the Occupational Safety and Health Law No. 319/2006. The definition of “workplace” contained in Law No. 319/2006 aligns with the definition of “workplace” 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
Public transport means any vehicle used for public passenger transport, usually for a fee.
The definition of “public transport” contained in Law No. 349 of 2002 aligns with the definition of “public transport” 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)
Indoor or Enclosed
Enclosed public space means any space accessible to the general public or intended to be used by a community, regardless of ownership type or means of access, that has a roof or ceiling and is enclosed by at least two walls, regardless of the material used in construction or whether such construction is permanent or temporary.
The law contains a definition of “enclosed public space.” Under this definition, a place is “enclosed” if it has a roof and two or more walls. In contrast, the definition of “enclosed” in the FCTC Art. 8 Guidelines defines “enclosed” as having a roof or one or more walls. Therefore, some places would be considered enclosed under the FCTC Guidelines definition but not under the definition in the law.
To align with FCTC Art. 8 and the FCTC Art. 8 Guidelines, the law should contain a definition of “enclosed” or “indoor” in accordance with the definition provided by 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)
Tobacco Product
Tobacco product – means products that can be consumed and consist, even partly, from tobacco whether genetically modified or not.
The definition of “tobacco product” contained in Law No. 201/2016 aligns with the definition “tobacco product” provided in FCTC Art. 1(f).
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))
Children's Playground
Children’s playground means any enclosed or outdoor space intended for use by children.
The definition of “children’s playground” is significant because it defines the term to include both indoor and outdoor playgrounds, both of which are smoke free under Law No. 349/2002 (as amended).
