Prof dr Brigit Toebes and Willem Bantema MSc, Global Health Law Groningen, University of Groningen, email firstname.lastname@example.org in collaboration with Wanda de Kanter MD, chest physician Netherlands Cancer Institute, Member IASLC Commitee;
Critics have warned that Dutch legislation and policy increasingly lag behind that of other countries when it comes to regulating tobacco. Among others, there has been critique on the lack of a firm smoking ban in all (public and/or private) spaces, the absence of warning labels with pictures and/or plain packaging on tobacco products, limited tax increase, lack of display bans, reduction of sale points, and the absence of a comprehensive tobacco control campaign. Arguably, the current position is caused by the emphasis that the Dutch tend to place on autonomy and individual freedom.
Historical overview of legislation, regulation, and policy
The Dutch Tobacco Act, first adopted in 1988, prohibits smoking in all public buildings and in public transport. In 2004, the scope of the law was widened to include non-hospitality workplaces, except in separately ventilated areas not serviced by employees. More recently, in July 2008, the law was again expanded, rendering shopping malls, tobacco shops, gaming establishments, and convention centers smoke-free. The 2008 amendment also covers restaurants, cafes, bars, festival tents, and nightclubs, except in separately ventilated areas that are not serviced. Employees may only be required to enter such smoking rooms in emergency situations.
The Netherlands joined the Framework Convention on Tobacco Control (FCTC) on 27 January 2005.
In 2014, a substantial increase in excise duties was introduced, directly impacting retail prices. As a result, the cost of a pack of 20 cigarettes surpassed the €6 mark. Notwithstanding this recent price increase, the Dutch government has announced additional increases in excise duties for cigarettes and rolling tobacco to be implemented from 2015 onwards.
From January 2015, smoking is prohibited in all bars, including the small ones (see further below). The exception, however, leaves the ability to smoke in designated rooms and on open terraces intact. Recently (February 2016), the Dutch House of Representatives has voted in favor of new legislation that will ban smoking in all schools and colleges, as well as on playgrounds from 2020 onwards.
Under pressure from civil society, municipalities in the Netherlands are gradually denouncing their collaboration with the tobacco industry in removing cigarette stubs from beaches.
Smoking ban in small cafes
The aforementioned implementation of the smoking ban in the hospitality industry was the most successful in restaurants and the least successful in bars. Two years after introducing the smoking ban in Dutch bars, more than half of bar owners had violated the ban. This non-compliance attracted a lot of media attention and, on several occasions, resulted in court cases.
In February 2010, the Dutch Supreme Court ruled that the smoking ban must also apply to owner-run pubs and cafes without employees, thus rejecting an earlier ruling that small bar and café owners were exempt. Regardless of this ruling, the Dutch Minister of Health (Schippers) announced, in June 2011, an exemption to the smoking ban in small bars – those of less than 70m² – without employees that do not serve food.
In order to combat non-compliance, fines for violations of the smoking ban were doubled in August 2011 to now reach €600 for the first violation, €1,200 for the second violation, €2,400 for the third violation and €4,500 for the fourth consecutive violation.
Dutch court cases in which the FCTC played a role
Due to the Dutch ‘monist system’, treaties automatically form part of the Dutch legal order after their ratification. This means that the FCTC can be addressed directly in Court – which has now occurred on several occasions:
In 2012, the Anti-smoking group Clean Air Nederland (CAN) took the Dutch State to court in an effort to enforce a ban on smoking in all bars. CAN argued that the current situation – of abundant non-compliance – led to an unfair competitive disadvantage for bars which do obey the law, and that the State violated the FCTC (Article 8-2). CAN’s victory in the appeals process was confirmed by the Supreme Court on 10 October 2014. As a consequence, State Secretary for Health (Van Rijn) announced immediate enforcement of the smoking ban in small bars on 21 July 2014, which entered into force in January 2015. While this new legislation abolishes the exemption for small bars, smoking is still allowed in closed smoking rooms and on an open terrace. At the end of 2015, about 93% of the bars were in compliance with the ban. Clear legislation and active enforcement appear to be effective. On 23 June 2016, a court decision is expected in a court case based on a new complaint by CAN***
Furthermore, in 2015 the Court of First Instance in the Hague addressed a complaint submitted by the Youth Smoking Prevention Foundation concerning the interaction between the Dutch government and the tobacco industry (based on Article 5-3 FCTC and human rights law). The claim was based on a considerable amount of documents giving evidence of close and frequent contact between various governmental bodies (including the Ministry of Health) and the tobacco industry. While the Court argued that Article 5(3) is insufficiently specific for the Court to rely on, government has responded by taking various measures to restrict the interaction between itself and the tobacco industry.
Bantema, Willem, 2016 (forthcoming), Why do bars rebel against the smoking ban? A socio-legal analysis of motivational postures and regulatory compliance in the Netherlands (Dutch dissertation).
Clean Air Nederland (CAN), available at http://www.cleanairnederland.nl/nieuws/523-persbericht-clean-air-nederland-daagt-nederlandse-staat-voor-rechter-in-verband-met-de-rookruimtes-in-de-horeca
Dutch government, Smoking, available at https://www.rijksoverheid.nl/onderwerpen/roken
Dutch Supreme Court (Hoge Raad), judgment of 23 February 2010; LJN: BK8211.
Dutch Supreme Court (Hoge Raad), judgment of 10 October 2014, ECLI: NL: HR:2014:2928.
English text of the Dutch Tobacco Act as of 1 January 2005, available at http://data.euro.who.int/tobacco/Repository/NL/Netherlands_Tobacco%20Act_as%20of%202005_EN.pdf
FCTC Alliance, Dutch court first to find that global tobacco treaty can trump international law, available at http://www.fctc.org/fca-news/secondhand-smoke/987-dutch-court-first-to-find-that-global-tobacco-treaty-can-trump-national-law
KNMG (Royal Dutch Medical Association), tobacco reduction (in Dutch), available at file:///X:/My%20Downloads/KNMG_StandpuntTabak_Digi.pdf
Ryan, Cynthia, A Dutch dilemma, available at http://www.cancertodaymag.org/Winter2015/Pages/A-Dutch-Dilemma-smoking-netherlands.aspx
Global Health Law Groningen, Dutch court decision, available at https://ghlgblog.wordpress.com/2015/11/12/court-decision-in-the-case-concerning-the-close-ties-between-the-dutch-government-and-the-tobacco-industry-november-9th-2015-no-violation-of-article-53-fctc/
Intraval & Nederlandse Voedsel en Warenautoriteit, Inventarisatie naleefniveau rookvrije horeca januari 2009, available at https://www.nvwa.nl/txmpub/files/?p_file_id=33784
Verschuuren, Marieke, International policy overview: smoking, available at http://www.nationaalkompas.nl/object_binary/o12169_International-Policy-Overview_smoking-_March2011.pdf
Parliament of the Netherlands – smoking in closed smoking rooms and smoking on an open terrace is still allowed, Tweede Kamer, vergaderjaar 2013-1014: 33 791, nr.3.
State Secretary van Rijn – on announced immediate enforcement of the smoking ban in small bars on 21 July 2014, http://www.rijksoverheid.nl/nieuws/2014/10/21/rookverbod-geldt-per-direct-in-alle-cafes.html
State Secretary van Rijn – letter to Parliament explaining the implications of 5-4 FCTC, https://www.rijksoverheid.nl/documenten/kamerstukken/2015/09/24/kamerbrief-over-verduidelijking-invulling-artikel-5-3-who-kaderverdrag
Tabaknee (newsletter), available at https://tabaknee.email-provider.nl/web/vvsxefzt4r/mwcvvdwqkp/vl278co9j3/zdro3ogjp4
Tabaknee, violation of FCTC by Dutch municipalities, available at http://www.tabaknee.nl/nieuws/nieuws/46-nieuw-op-de-site/698-rotterdam-utrecht-den-haag-breda-overtreden-kaderverdrag-bij-peukenaanpak
The Tobacco Atlas, The Netherlands, available at http://www.tobaccoatlas.org/country-data/netherlands/
Youth Smoking Prevention Foundation the Netherlands, available at http://www.stichtingrookpreventiejeugd.nl/