Court rules that exemption from smoking ban for small Dutch cafes is “unlawful”

BMJ 2013; 346 doi: (Published 03 April 2013) Cite this as: BMJ 2013;346:f2123
  1. Tony Sheldon
  1. 1Utrecht

An exception to the smoking ban in the Netherlands allowing people to light up in small cafes is unlawful, according to a landmark legal ruling by the appeal court in The Hague. The court ruled that, as a signatory to the Framework Convention on Tobacco Control, the Dutch government must act to prevent smoking in all cafes.

Tobacco control experts have dubbed this the “final word” and argue that any delay would be a “disaster” for public health. Last year, in the wake of the relaxation of the ban, the smoking rate increased from 25% to 26%.

In 2011 the previous centre-right Dutch government introduced an exception to the 2008 smoking ban, allowing smoking in cafes smaller than 70 square metres that did not employ staff whose rights to a smoke-free workplace could be violated.

Anti-smoking lobby group Clean Air Netherlands challenged this exemption in the courts, arguing that the Netherlands was a signatory to the World Health Organization’s Framework Convention on Tobacco Control. Its article 8 states that signatories must take effective measures against exposure to tobacco smoke in “indoor public places.” The court agreed with Clean Air Netherlands that this included all cafes, therefore the exception for small cafes was unlawful.

The court decreed that the description of small cafes by the previous Dutch government as “sitting room cafes” was irrelevant as they were still accessible to the public. It also rejected the argument that small cafes could be designated under the treaty as “other public places” allowing the government only to take measures “as appropriate.” The court ruled that “other public places” were places “in the open air.”

The lobby group’s chair, Patrick Zonderop, is urging the state secretary for health, welfare, and sport, Martin van Rijn, to act immediately, describing the current situation—in which smoking is estimated to take place in nearly half of all cafes—as “a mockery.” He wants the public prosecution service to temporarily close cafes found contravening the ban.

A health ministry spokesman said it was already investigating a fundamental change in the law to ensure a 100% smoke-free hospitality sector. This ruling was now part of that process, which would take weeks not months, he said.

But Marc Willemsen, professor in tobacco control research at Maastricht University, said, “I honestly do not understand why it needs to be studied further. The minister should be standing behind it. This is the final word.” He warned that waiting a further two years, which it has been argued is what is needed to change the law, “would be a disaster.”

Pauline Dekker, a lung specialist who campaigns against smoking, explained that most people started smoking as teenagers, picking up the habit at home, when they visited pubs, or at school. “If you now wait two years, you will have two years of new starters.” And people trying to stop smoking often relapsed when they went to a pub and saw everyone else smoking, she added.


Cite this as: BMJ 2013;346:f2123