Last updated: December 6, 2021
Key Terms
Second Hand Smoke (or similar term)
Although this term is not defined, a definition is not strictly necessary because the term is not used in the law. The law’s smoke free measures prohibit smoking in enumerated “no-smoking premises” rather than, for example, “no person shall be exposed to second hand smoke in public places.”
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
Smoke: means smoke tobacco, any substance or mixture which includes it or any other substance or mixture; and a person is to be taken as smoking if the person is holding or otherwise in possession or control of lit tobacco, of any lit substance or mixture which includes tobacco or of any other lit substance or mixture which is in a form or in a receptacle in which it can be smoked.
The definition of “smoking” aligns with the FCTC Art. 8 Guidelines. 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)
Public Place
Although the term “public place” is not defined, a definition is not strictly needed to apply the smoke free provisions of the legislation because the law and regulations list places where smoking is allowed or prohibited. However, to implement the FCTC Art. 8 obligation to provide protection from second hand smoke in all parts of all indoor public places, a definition of “public place” should be provided in accordance with FCTC Art. 8 Guidelines para. 18.
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
The law prohibits smoking in places used mainly as a “place of work” but does not define “place of work.” To clarify the scope of the ban and implement FCTC Art. 8 and the FCTC Art. 8 Guidelines, a definition of “place of work” should be provided in accordance with the definition of “workplace” 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 transportation vehicle: means any vehicle available to the public as a means of transportation and includes a taxi and a private hire car.
The definition of “public transport” covers any vehicles available to the public. Therefore, it aligns with 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
Wholly enclosed: (3)(b)(i) for premises other than a vehicle or part of a vehicle, having a ceiling or roof and, except for doors, windows and passageways, wholly enclosed, whether permanently or temporarily; or
(ii) for premises that are a vehicle or part of a vehicle, having a top or roof and, except for doors, windows or exits, wholly enclosed, whether permanently or temporarily.
Substantially enclosed: (3)(c)(i) for premises other than a vehicle or part of a vehicle, having a ceiling or roof and, except for doors, windows and passageways, substantially enclosed, whether permanently or temporarily; or
(ii) for premises that are vehicle or part of a vehicle, having a top or roof and, except for doors, windows or exits, substantially enclosed, whether permanently or temporarily, and in determining whether premises are “substantially enclosed”, no account is to be taken of openings in which there are doors, windows, or other fittings that can be opened or shut.
(3)(d) Premises shall be taken to be substantially enclosed if- (i) the opening in the premises has an area; or (ii) if there is more than one, both or all those openings have an aggregate area, which is less than half the area of the walls, including any other structures serving the purpose of walls, which constitute the perimeter of the premises.
The regulations provide a definition of “enclosed premises” and “substantially enclosed premises.” The law prohibits smoking in enumerated categories of places if they are either enclosed or substantially enclosed. Together, the definitions of “enclosed” and “substantially enclosed” provide less protection than intended by the FCTC Art. 8 Guidelines because they allow smoking in areas that are 50% or less enclosed, whereas the FCTC Art. 8 Guidelines call for 100% smoke free environments in areas with one or more walls or covered by a roof.
To fully align with the FCTC Art. 8 Guidelines, a definition of “indoor” or “enclosed” premises should be provided in accordance with the definition provided in the 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
Technically, a definition of “tobacco products” is not necessary because the law does not prohibit smoking “tobacco products,” but rather prohibits “smoking tobacco or any substance or mixture which includes it or any other substance or mixture.” Therefore, the law aligns with FCTC Art. 8 and the FCTC Art. 8 Guidelines in this respect.
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))
Vehicle
Vehicle: includes any train, bus, car, or any vessel (whether navigable or not), boat, or hovercraft.
The definition of “vehicle” is significant because the law prohibits smoking in public service vehicles.
