Last updated: September 27, 2021
Second Hand Smoke (or similar term)
The law does not contain a definition of “second hand smoke.” However, a definition is not strictly necessary because the law provides that “smoking is prohibited” in places, rather than, for example, “no person shall be exposed 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
The law does not contain a definition of “smoking” or “smoke.” The lack of definition of this key term could hinder enforcement of the smoking ban. To align with FCTC Art. 8 and the FCTC Art. 8 Guidelines, the law should contain a definition of “smoking” or “smoke” 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)
Interiors or enclosed public spaces shall be understood to be any work place or place of public access which is covered by a roof and enclosed between walls, regardless of the material used for the roof or whether the structure is permanent or temporary.
Article 2 of Law No. 29517 amends Art. 3 of Law No. 28705 and adds a substantive provision that defines “enclosed public places.” The definition in the law aligns with the definition in the FCTC Art. 8 Guidelines in that it encompasses all places of public access. However, the definition would be clearer if it specified that a place of public access is public “regardless or ownership or right of access.”
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)
Work places: For this Regulation a work place shall be understood as any place used by people during their employment or job. This definition must cover not only compensated work, but also voluntary work of the type that is normally compensated. Work places also include not only those where work is performed, but also all places that workers customarily use in the performance of their job, among them, for example, hallways, elevators, stairway skylights, lobbies, adjoining facilities, cafeterias, health services, lounges, dining rooms and attached structures, such as sheds, among others. Work vehicles are considered work places and must be identified specifically as such. The interiors of work places include all spaces within their perimeters.
Decree No. 001-2011 amends Decree No. 015-2008 and replaces the definition of “work place.” The amended definition of “work place” 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)
Means of public transportation: Units of individual or mass transportation, land, air or sea transportation, used to carry passengers, regardless of their condition, type or tonnage.
The definition of “means of public transportation” in the law 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 spaces: Any publicly accessible place that is covered by a roof and has more than one wall, regardless of the material used, of its dimensions or height and whether it is of a temporary or permanent nature.
Decree No. 001-2011 adds a definition of “enclosed public spaces” to Decree No. 015-2008. The definition of “enclosed public spaces” requires a roof and more than one wall for a place to be considered enclosed. In contrast, under the FCTC definition, a place with a roof and only one wall is considered enclosed. Therefore the decree’s definition is narrower than the FCTC definition. To align with FCTC Art. 8 and the FCTC Art. 8 Guidelines, the law should provide a definition of “indoor” or “enclosed” in accordance with the definition contained 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)
Tobacco products: Products prepared totally or in part by utilizing tobacco leaves as raw material and which are designed to be smoked, sucked, chewed or used as snuff.
The definition of “tobacco product” contained in the Decree aligns with the definition of “tobacco product” 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))
Public office: Includes all National Entities.
The definition of “public office” is significant because smoking is prohibited in all public offices.