2005–2007 Placing smoke-free hospitality on the national agenda

In late 2005, the three major Dutch health non-governmental organizations (NGOs)—Astma Fonds (Asthma), Nederlandse Hartstichting (Heart), KWF Kankerbestrijding (Cancer) together with STIVORO (Smoking and Health Foundation for a Smokefree Future, the main tobacco control NGO in the Netherlands), decided to integrate lobbying into their tobacco control activities.^[8] In 2006, the health NGOs and STIVORO developed a policy agenda which included ending the Tobacco Act hospitality exemption, raising tobacco taxes, requiring that health insurance plans cover tobacco cessation, and increasing government spending on tobacco control.^[8] They expanded their smoke-free coalition to include Partnership Stop Met Roken, Clean Air Nederland (CAN) and other groups.^[8] During the November 2006 election campaign, the smoke-free coalition lobbied to include their policy package in the new government's post-election agenda.^[8]

The hospitality industry and its allies opposed smoke-free regulations, arguing they cost jobs.^[8] In response, the smoke-free coalition spotlighted venues interested in going smoke free, and argued that hospitality workers’ health needed protection. CAN collected petition signatures supporting smoke-free hospitality, which was presented to members of Parliament during a smoke-free breakfast.^[9] This lobbying drew media attention and support. The coalition government that emerged in February 2007 included smoke-free hospitality by the end of its term on its agenda.^[10] However, before the first meeting of the Council of Ministers in January 2007, the new Minister of Health, Abraham Klink, announced his intention to implement smoke-free hospitality within a year.^[8] The next day Klink backpedaled, saying he needed to talk to other stakeholders.^[8]

2007–2008 Realizing an end to the exemption

Minister Klink met with the three health NGOs, STIVORO and CAN in March 2007 and other stakeholders, including KHN, regarding smoke-free regulations beginning in April.^[11] The two Dutch tobacco manufacturers associations, Stichting Sigarettenindustrie (SSI, cigarettes) and Vereniging Nederlandse Kerftabakindustrie (VNK, rolling tobacco) participated in the stakeholder meetings.^[11,12] Meanwhile, the NGOs and STIVORO continued to pressure Parliament on the issue.^[13]

Throughout 2007, the hospitality industry and smokers’ rights organizations continued to oppose ending hospitality's exemption, generating increasingly negative media.²⁰ Hospitality organizations, individual venue owners and the Dutch employers’ association complained to Parliament and the media that the Minister was not working with them and failed to consider KHN's proposal that the laws be phased in from 2008–2011.^{[10,14,15],19} When the Minister resisted this proposal, KHN asked that small bars and owner-run venues (bars without employees) not be exempt on the grounds that larger venues would lose business to them.^[13] Minister Klink investigated the possibility using ventilation as an alternative to smoke-free laws,^[13] but rejected this.^[11,12]

Due to KHN's stance, several small bars and owner-run bars publicly stated that KHN did not represent them and began lobbying separately.^[16] They argued the Act was meant to protect employees, and did not apply to owner-run bars. Small bars argued they would lose patronage to larger venues with smoking rooms, a claim widely reported in the media.^[17]

Ending the exemption

On 8 June 2007, Minister Klink sent a letter to Parliament outlining why the hospitality exemption would end on 1 July 2008 (smoking rooms were allowed).^[18] He rejected KHN's phase-in proposal; all hospitality venues would be subject to the same regulation.^[7] Parliamentary oversight of the implementation process still had to be negotiated.^[8,12] Parliament engaged in a long discussion in September 2007 and asked interested parties to submit written comments,^[11,12] then asked the Minister to respond.^[11,12] about ventilation as an alternative to going smoke free, requests for exemptions, alleged economic loss and requests for government compensation to hospitality venues for the expected loss.^[11,12] The Minister held firm regarding implementation, while throughout late 2007, hospitality representatives dragged out implementation talks.

Counter-pressures and media coverage

The smoke-free coalition continued to advocate for smoke-free regulations and sent out press releases and briefing papers countering allegations of economic loss and rejecting ventilation as an alternative.^[13] (None of the health organizations raised the issue of continuing smoking rooms, because of concern that doing so would delay smoke-free hospitality venues.^[13]) They also conducted a letter writing campaign to Parliament,^[19–21] brought patients to Parliamentary hearings, and presented a petition to individual legislators.^[20]

During elections and the beginning of 2007, media coverage of the push for smoke-free hospitality venues was positive. The public relations campaign by small bars, throughout 2007 and 2008 resulted in the Minister received increasingly negative press regarding smoke-free hospitality.²⁰ Newspaper coverage increased in July 2008 and again in Autumn 2008, focusing on economic issues rather than health gains.²⁰ Echoing tobacco industry messaging,^9,21 opponents accused the government of violating individual freedom, and called Minister Klink a ‘nanny’.^[8,13,17] The four NGOs could not generate enough positive earned (unpaid) media to counteract the negative press^[22] and did not fund paid media. The Minister began distancing himself from the smoke-free regulations. In July 2008, he refused to participate in ceremonies marking the beginning of smoke-free hospitality.^[8] In September 2008, he gave a speech at the inauguration of a smoking room sponsored by SSI and VNK.^[8,23] The Minister did not publically respond to media coverage of bar owners arguing that the law did not apply to them.^[13]

2007–2008 Preparing to implement smoke-free hospitality regulations

In late 2007 and early 2008, the Ministry conducted an educational campaign aimed at venue owners, workers and smokers,^[10,24] including a television advertisement in which an anthropomorphic cigarette was depicted as enjoying activities with smokers, who were deprived of their friend (the cigarette) when it was forcibly ejected from in hospitality venues (figure 1). The content focused on the fact that cigarettes were not allowed rather than on the benefits of the new smoke-free regulations. It did not target the general public and made no mention of health reasons for smoke-free laws or benefits to workers and the public.^[25] The Ministry's no-smoking signage also used anthropomorphic cigarettes (figure 1).^[24]

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Figure 1

(A) The Ministry of Health, Welfare and Sports smoke-free media campaign presented the new law from the point of view of an anthromorphized cigarette being forceably ejected from bars rather than stressing the benefits of smoke-free bars for everyone. (The text of this television commercial is in the Supplemental Data.) (B) Free posters provided to hospitality venues by the Ministry of Health also stressed the role of the cigarette rather than the benefits of being smoke free. Source: Ministry of Health Welfare and Sport^[24,25]

The Ministry blocked the health NGOs from running alternate ads, arguing that notifying the public was the Ministry's responsibility.^[8,13] The health NGOs wrote to Klink stating they did not support the media campaign and worried about its effectiveness.^[8,17,22,26]

To support the smoke-free regulations, the National Tobacco Control Plan (NTCP, a joint venture between the Ministry of Health and Cancer, Asthma and Heart) planned an intensive well-publicized quit-campaign timed to run in early 2008 before the regulations took effect.^[19,22,27] In addition, the NCTP and STIVORO successfully lobbied for a tobacco tax increase in 2008.^[8,20,22,28] The Minister announced a period of adjustment where venues would be warned but not fined, without setting an end date for this period.^[26,29,30]

2008–2009 Pro-tobacco opposition

Organized tobacco industry opposition

In April 2008, the chairman of Forces Nederland and a lobbyist for Stichting Rokersbelangen (SRB) (smokers' rights groups) helped found ‘Save the Small Cafe Owners’ (KHO)^[31] as part of a network of smokers rights’ activities (figure 2) to fight smoke-free regulations. KHO co-founder Ton Wurtz, regularly met with SSI to discuss his work as a lobbyist for SRB and occasionally discussed KHO.^[31] Other small bar owners formed protest groups.^[16] These groups ran a hard-hitting public relations campaign claiming that regulations caused revenue losses that resulted in substantial earned media coverage.^{[29,30,32–36]}

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Figure 2

Organizational linkages between opponents of the smoke-free hospitality law, including the tobacco companies and KHO and other smokers’ rights activities. Source: Een rokende Gideonsbende^[31]

Declining public support for smoke-free hospitality venues

Smoke-free hospitality regulations began on 1 July 2008. Similar to California's 1998 experience of the initial rate of compliance regarding smoking in bars,²² from July to –September 2008, 79% of bars and nightclubs and 94–99% of other hospitality venues inspected by the Food and Consumer Product Safety Authority (VWA) were complying with smoke-free regulations (figure 3).^19,[37]

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Figure 3

Percentage of bars and nightclubs observed violating the smoke-free law (observation of smoking in venue or of ashtrays on table). Source: Study commissioned by the VWA of representative sample of catering establishments in the Netherlands visited by INTREVAL^[38,39]

Bars claimed economic loss and continued violating regulations.^{[29,33,40–42]} Media coverage of these actions created an atmosphere in which small bars felt they were supported by the general public. Some bars made pacts with nearby bars to defy smoke-free regulations, others became aggressive with VWA inspectors.^{[30,33,43,44]} By October 2008, only 62% of bars, nightclubs and activity centers VWA inspected were in compliance, dropping to 53% by November (figure 3).^[45]

Litigation

Due to well-publicized, repeated violations, Minister Klink announced that starting 1 October 2008, the government would impose administrative fines on venues that repeatedly violated the regulations.^[29,48,49] The VWA began issuing fines, and^[29,33,45] in mid-November, the Minister announced that bars who repeatedly violated regulations would additionally face criminal prosecution, and closure.^{[30,33,41,43–45]}

In February 2009, owners of Cafe de Kachel in Groningen, were the first individuals found guilty in criminal court and the bar was ordered closed for 1 month.^[34,49,50] The criminal prosecution of other bar owners followed,^[34,49,50] and compliance improved (figure 3).^[38]

With KHO's financial support, the owners of Café de Kachel and several other bars appealed their sentences. In 2009, several appellate courts reversed lower court decisions, ruling the Tobacco Act did not apply to bars without employees and distorted competition between small and large bars.^[51–56] The Ministry of Health appealed to the Supreme Court and announced plans to amend the Tobacco Act and its implementing regulations to clearly specify that the law applied to venues with and without employees.^{[30,52,53,57–61]}

Citing ongoing litigation, members of Parliament requested that the Minister exempt owner-run venues, asked him to respond to more questions regarding the law, and pressured him to exempt small and owner-run bars.^[12,60–63] In July 2009, the Minister directed the VWA to suspend enforcement in bars without employees pending the Supreme Court's ruling.^[30,59,60] Pressure from Parliament forced the Minister to reopen the possibility of using ventilation.^[13,60,61] The major health NGOs and STIVORO opposed this decision, and attempted to get media coverage of the fact that ventilation would not protect hospitality employees and customers from the health dangers of SHS.^[27,30,64] Compliance among bars and nightclubs continued to decline (figure 3).^[65]

In February 2010, the Supreme Court ruled owner-run bars were subject to the Tobacco Act,^[4,66–68] and VWA resumed enforcing the regulations in owner-run bars. Compliance increased during summer 2010, 72% of bars and nightclubs were in compliance with the law (figure 3).^[16,39]

Framing and compliance

Countering opposition to smoke-free laws has been done elsewhere with well-planned implementation campaigns that used the media to target non-smokers to reinforce public support, and by active enforcement of the law after a specified introductory period.^4,30,31 The Ministry and four NGOs’ focus on smokers and smoking cessation campaign allowed KHO to control public perception. The initial lack of a specific date on which vigorous enforcement of the law would begin, allowed KHO and other bar groups several months to build momentum to defy and challenge the law.

As elsewhere,^4,32 compliance increased with enforcement. However, the small bars and KHO pursued litigation, and victories in the appellate courts reinforced claims that the law damaged small bars. The Minister's reopening of the possibility of ventilation, and Parliament's ongoing promotion of the alleged economic impact claims, further undermined implementation. Public opinion regarding smoke-free bars declined and the tobacco control advocates were not able to regain public support.

The danger of exemptions

The Ministry exempted smoking rooms in private workplaces in the original implementation of the Tobacco Act Amendment in 2004, and continue to do so as it extended the law into different sectors. Small bar groups linked smoking rooms and economics, arguing small bars were at a competitive disadvantage to larger venues with smoking rooms. The smoking room exemption allowed the small bar groups to continue to promote ventilation as an alternative to smoke-free laws. Furthermore, Minister Schippers was able to re-exempt owner- and family-run pubs from the law, weakening tobacco control policy in the Netherlands.^[2]

The Netherlands and the FCTC

Implementing guidelines for Article 8 of the WHO Framework Convention on Tobacco Control (FCTC), which the Netherlands ratified in 2005, call for parties ‘to provide universal protection’ and argue ‘[n]o exemptions are justified on the basis of health or law arguments’.^33,Section6 The exemption for smoking rooms, and the re-exemptions of owner-run bars violates these guidelines.³³ Furthermore, the Netherlands acted inconsistently with the guidelines of FCTC Article 5.3, which state ‘[p]arties should protect the formulation and implementation of public health policies for tobacco control from the tobacco industry to the greatest extent possible’.³⁴ During implementation talks the Minister met with both SSI and VNK as stakeholders.

We thank Lies van Gennip, Marc Willemsen, and Fleur van Bladerenfrom STIVORO, as well as the Astma Fonds, Kanker Bestrijding, Nederlandse Hartstichting and other interviewees for their willingness to provide us information for the research study. We would also like to thank Lyske Bouma, Hedda van 't Land, and Hendrika Reinerink for their help with translation.