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Ban on smoking in Germany: a never ending story?!

Country: 
Deutschland
Partner Institute: 
Bertelsmann Stiftung, Gütersloh
Survey no: 
(10)2007
Author(s): 
Kerstin Blum
Health Policy Issues: 
Public Health, Prävention
Reform formerly reported in: 
Health vs. profit: Anti-smoking efforts in Germany
Current Process Stages
Idee Pilotprojekt Strategiepapier Gesetzgebung Umsetzung Evaluation Veränderung/Richtungswechsel
Implemented in this survey? nein nein nein ja ja nein nein

Abstract

The German federal government passed a law on 27 April 2007 to ban smoking in all buildings under federal authority and in public transport and to raise the age limit for smoking from 16 to 18 years. The federal states agreed on banning smoking in restaurants, schools, public buildings and bars; some states have established exemptions. Most regulations still remain to be implemented.

Neue Entwicklungen

The report "Health vs. profit: Anti-smoking efforts in Germany" (08/2006) described a policy paper of the governing coalition to ban smoking in all public areas, to raise the age limit for buying tobacco from 16 to 18 years, and to ban tobacco advertising.

However, not all issues could be addressed by the federal government. Many public places like schools, hospitals, bars, restaurants, etc. lie within the responsibility of the federal states. The federal government only had the legal authority to ban smoking in public transportation, buildings under federal authority and to raise the age limit - and did so by a law passed on 27 April 2007. Since then, the federal states have started to implement smoking bans one by one, after failing to come to a joint solution. Since each state followed its own time line and establishes its own exemptions, anti-smoking efforts in Germany have reached a new level of intensity but remain fragmented.  

How effective a well implemented smoking ban could be shows research by the European Network for Smoking Prevention: A ban on advertising tobacco products reduces smoking in the population by 7 % and a ban of smoking at the work place (including restaurants and pubs) reduces smoking in the population by 5 %; in addition non-smokers are better protected against passive smoking (European Network for Smoking Prevention 2004).  

 Suchhilfe

Characteristics of this policy

Innovationsgrad traditionell traditionell innovativ
Kontroversität unumstritten kontrovers kontrovers
Strukturelle Wirkung marginal recht fundamental fundamental
Medienpräsenz sehr gering sehr hoch sehr hoch
Übertragbarkeit sehr systemabhängig systemneutral systemneutral
current current   previous previous

The approach of banning smoking in public to reduce the harm of passive smoking is a well established policy in many European countries - it is system-neutral. Although the implementation in other European countries with strong smoking and pub cultures showed positive effects, However, the discussion in Germany continues to be controversial and lagging behind. With different opinions of strong interest groups clashing, the debate around the law was and is intense and publicly visible.

Purpose and process analysis

Current Process Stages

Idee Pilotprojekt Strategiepapier Gesetzgebung Umsetzung Evaluation Veränderung/Richtungswechsel
Implemented in this survey? nein nein nein ja ja nein nein

Initiators of idea/main actors

  • Regierung: Since authority for banning smoking in most public places (e.g. restaurants and bars) lies with the federal states, the main influence in this field has moved from the federal government, who initiated anti-smoking efforts, to state governments and parliaments.
  • Parlament
  • Leistungserbringer
  • Wissenschaft
  • Privatwirtschaft, privater Sektor: While the tobacco industry has reduced their lobbying efforts, the hotel and catering industry is strongly opposing smoking bans (see

Stakeholder positions

The center-state divide of authority in federal Germany jeoparizes a consistent ban of smoking in public. Although federal states negotiated the issue and tried to find one comprehensive and nationwide solution, divergent opinions led to a piecemeal result. In March 2007 the state health ministers agreed on a ban of smoking in schools, state buildings, hospitals, restaurants and bars. However, this agreement was not legally binding, but rather a policy statement. The definite legislation is task of each federal state and includes exemptions for local pubs, beer tents, and adjoining rooms in restaurants. Exemptions were especially required by states with strong tobacco lobby groups and local customs.

Interest group positions

Physicians and researchers criticize fragmentation of anti-smoking efforts

The physician association and the German Cancer Research Center in Heidelberg criticize that there are exemptions; a general ban would be more useful and easier to execute. The current situation enables 16 different solutions for smoking regulations in Germany, with every state having different exemptions. A general ban on smoking would make it easier to understand, follow and enforce the rules.

Influential Association of German Tobacco Industry ends in smoke

In the middle of all discussion on anti-smoking regulations, the influential Association of German Tobacco Industry (VDC) has dissolved as a result of internal conflict (reported by Handelsblatt, 29 June 2007). The industry leader in Germany, Philip Morris (37% market share), left the association in May 2007, claiming to disagree with its position on anti-smoking efforts.

Philip Morris claimed to be in favor of a stronger regulation of the tobacco industry and does not completely oppose smoking bans (quoting from www.philipmorrisinternational.com: "Philip Morris International believes that the conclusions of public health officials concerning environmental tobacco smoke are sufficient to warrant measures that regulate smoking in public places.")

The other six producers of tobacco products in Germany criticized Philip Morris' position as hypocritical. The VDC was dissolved in summer 2007. Since then former VDC members are discussing conditions under which to reestablish the association (Löwisch 2008).

Conquering new markets

In strong discrepancy to its former intensive lobbying efforts, trying to prevent anti-smoking regulation, the German tobacco industry today portrays itself as the voice of reason (Löwisch 2008). Tobacco companies publicly call on owners of restaurants and bars to adhere to existing laws banning smoking in their facilities. Instead of fighting the implementation of smoking bans, the industry assists restaurants and bars in installing separate smoking rooms, which are allowed in almost all federal states, and provide them with free equipment and furniture. The truth of all of this: business is elsewhere - in the larger, unprotected markets of developing and threshold countries.

Association of German Catering Industry takes up the banner

The banner of fighting for "smokers' freedom" has been taken up by the Federal Association of the German Hotel and Catering Industrie (DEHOGA).  Inspite of international evidence proving the opposite (Avance group 2007), restaurant and pub owners are afraid of losing customers due to smoking bans. DEHOGA and local associations of the hotel and catering industry critizise the smoking ban and perceive the possibility of having separated rooms for smokers in restaurants and pubs as insufficient. They argue that the ban threatens smaller businesses that do not have space (nor means to establish) for separated smoking rooms. DEHOGA has filed a constituitonal complaint in December 2007, arguing that a smoking ban would reduce the entrepeneurial freedom of restaurant and bar owners.  Some bar owners have gone as far as requesting a unitary solution - they state that it would be easier for all parties concerned to adjust to prohibition / clearcut regulation - rather than coping with 16 different regional and temporary legislations.

The Bavarian Association of the Hotel and Catering Industry also strays from the "permissive" view, stating that there should be either no regulation or a strict ban of smoking in all pubs, whithout any exemptions.

Actors and positions

Description of actors and their positions
Regierung
Federal Minister of Healthsehr unterstützendsehr unterstützend stark dagegen
Federal Minister of Consumer Protectionsehr unterstützendsehr unterstützend stark dagegen
Federal State Governmentssehr unterstützendunterstützend stark dagegen
Parlament
Federal Parliamentsehr unterstützendunterstützend stark dagegen
Federal State Parliamentssehr unterstützendunterstützend stark dagegen
Leistungserbringer
Physician Associationsehr unterstützendsehr unterstützend stark dagegen
Wissenschaft
German Cancer Research Centersehr unterstützendsehr unterstützend stark dagegen
Privatwirtschaft, privater Sektor
Association of the German tobacco industry (VDC)sehr unterstützendstark dagegen stark dagegen
Federal association of the German hotel and catering industry (DEHOGA)sehr unterstützendstark dagegen stark dagegen
Bavarian association of the hotel and catering industrysehr unterstützendunterstützend stark dagegen
HOGA (Brandenburgs Association of the Hotel and Catering Industry)sehr unterstützenddagegen stark dagegen
current current   previous previous

Influences in policy making and legislation

Anti-smoking efforts hindered by political divide

In Germany, efforts to ban smoking in public have been lengthy and troublesome. First, because of a reluctance of German policymakers to go beyond voluntary commitments, later because of a competence allocation matter between the federal government and the federal states.

Originally, the federal government wanted to impose a general ban on smoking in public places (see report 8/2006), but could only implement a law to ban smoking in buildings under federal authority, federal court rooms and in public transport and raise the legal age of smoking from 16 to 18 years. Parliament passed a corresponding law on 27 April 2007; the Federal Council agreed to the law on 6 July 2007. First parts of this law bacame effective on 1 September 2007.

Implementation and enforcement of a smoking ban in bars, restaurants, schools, hospitals and other buildings under public authority lay in the responsibility of the States. The Federal Ministry of Health feared that states would not be able to agree on a nationwide solution - a concern that proved to be justified. Especially the federal state Lower Saxony did not want to introduce a ban on smoking in bars and restaurants - a position that might have been influenced by lobbyist groups. In the course of the negotiation process, Lower Saxony changed its opinion due to pressure from opposition and federal government.

The ministers of the federal states agreed on 22 March 2007 to introduce regulations to ban smoking, but did not succeed in coming up with a nationwide agreement. Legislation was left to every single state.

While all states stated their intention to ban smoking in schools, hospitals, public buildings, restaurants and pubs, cultural and recreative facilities, exemptions are still possible and vary from state to state. Bavaria has passed the most restrictive ban on smoking. Outside Bavaria, separate smoking rooms are still possible; Saarland even allows smoking in main pub rooms, as long as the owner and/or spouse are the only people working there.

State-to-state variations

Generally, in most public places, no matter if recreational or cultural facilities, schools or hospitals, the provision of a separate smoking room is allowed. Taking a closer look, things are getting more complicated: Hamburg, Bavaria, and Lower Saxony do not allow smoking rooms in schools but accept them in hospitals. Northrhine-Westphalia and Rhineland-Palatinate passed a complete smoking ban in hospitals as well as in schools. Some states have even installed exemptions for beer tents: Bavaria, North Rhine-Westphalia, Hamburg, Baden-Württemberg, and Rhineland-Palatinate still wants to allow smoking in beer tents/halls, while banning it in pubs and restaurants. This list of state-to-state differences in regulations could be continued.

Legislative outcome

Enactment

Actors and influence

Description of actors and their influence

Regierung
Federal Minister of Healthsehr großgroß kein
Federal Minister of Consumer Protectionsehr großgroß kein
Federal State Governmentssehr großsehr groß kein
Parlament
Federal Parliamentsehr großgroß kein
Federal State Parliamentssehr großsehr groß kein
Leistungserbringer
Physician Associationsehr großgering kein
Wissenschaft
German Cancer Research Centersehr großgroß kein
Privatwirtschaft, privater Sektor
Association of the German tobacco industry (VDC)sehr großgroß kein
Federal association of the German hotel and catering industry (DEHOGA)sehr großneutral kein
Bavarian association of the hotel and catering industrysehr großgering kein
HOGA (Brandenburgs Association of the Hotel and Catering Industry)sehr großgering kein
current current   previous previous
Physician AssociationFederal Minister of Health, Federal Minister of Consumer Protection, German Cancer Research CenterBavarian association of the hotel and catering industryFederal ParliamentFederal State Governments, Federal State ParliamentsHOGA (Brandenburgs Association of the Hotel and Catering Industry)Federal association of the German hotel and catering industry (DEHOGA)Association of the German tobacco industry (VDC)

Positions and Influences at a glance

Graphical actors vs. influence map representing the above actors vs. influences table.

Adoption and implementation

Timeline for implementation is as fragmented as regulations themselves

Nationwide regulations:

  • 1 September 2007: Ban on smoking in all buildings under federal authority and in public transport
  • 1 January 2009:  Age limit for buying tobacco products and smoking in the public from 16 to 18 years  

Smoking bans introduced on state level (exemptions differ for every state, usually smoking is allowed in separate rooms):

1 August 2007:  

  • Smoking ban including restaurants and bars in Lower Saxony and Baden-Württemberg 
  • Mecklenburg-Western Pomerania and Nortrhine-Westphalia ban smoking in public spaces except for restaurants and bars

1 October 2007:

  • Hesse bans smoking in all public spaces

1 January 2008:  

  • Brandenburg, Bavaria, Berlin, Bremen, Hamburg, Saxony-Anhalt, and Schleswig-Holstein ban smoking in all public spaces
  • Mecklenburg-Western Pomerania bans smoking in restaurants and bars

1 February 2008:

  • Saxony bans smoking in all public spaces

15 February 2008:

  • Rhineland-Palatinate bans smoking in all public spaces
  • relatively mild ban on smoking in Saarland

1 July 2008:

  • Thuringia bans smoking in all public spaces
  • Northrhine-Westphalia bans smoking in restaurants and bars
  •  Berlin and Brandenburg start enforcing their smoking bans, offenses against the law will from now on be punished by monetary fines

There will be monetary fines for not acting according to the new regulations in all states. Both the smoker and the owner of the facility have to pay a fine. The fine will be different in every state and will lie between € 5 and € 5,000.

Slow legislation process is followed by hesitant enforcement

Once the federal and state governments finally finished their legislative proceedings, responsibility for enforcing the new laws lies with local authorities. Often, responsible actors at the local level are hesitant to take the necessary steps for enforcement.

Monitoring and evaluation

The new regulations will be evaluated by most federal state governments by 31 December 2009.

Expected outcome

The fragmentation in anti-smoking regulations lead to a rekindling of the discussion every time a state enters a new phase in ant-smoking regulation. This means that the debate on smoking bans, their use for public health and the restrictions they mean for smokers, is unnecessarily prolonged. Furthermore, the reasons for differing regulations for each federal state are difficult to explain to the public. 

However, in the long run, anti-smoking efforts can be expected to be successful. Most Germans support a smoking  ban in public places, and experience from other countries suggests that implementation is rather smooth after initial debate has ceased, with sanctions put in place. 

Once regulations have been enacted in all states, non-smokers will be better protected from passive smoking.

Impact of this policy

Qualität kaum Einfluss kaum Einfluss starker Einfluss
Gerechtigkeit System weniger gerecht neutral System gerechter
Kosteneffizienz sehr gering high sehr hoch
current current   previous previous

The policy has no impact on the quality of health care services and the level of equity, because it is a preventive measure. Cost-efficiency is very high: After implementation direct costs should be considerably reduced, for both tobacco addicts and cancer patients. On the other side, it is true that revenues of tobacco taxation will most likely diminish. If there is going to be only a marginal reduction in deaths due to passive smoking and an increase in the health status of the population, the policy can be seen as cost-efficient.

References

Sources of Information

  • Avance Group "Smoking ban offers the hope of new customers", 2007, www.avancegroup.co.uk/news/smoking-ban-offers-the-hope-of-new-customers/.
  • Bundesministerium für Gesundheit "Gesetz zum Schutz vor den Gefahren des Passivrauchens" Dokument: 07-06-25 NSG BGBL.doc.
  • Bundesgesundheitsministerin "Deutschland wird zu einem Land mit konsequentem Nichtraucherschutz" 27.04.2007. www.bmg.bund.de/cln_040/nn_669418/DE/Presse/Pressemitteilungen/Presse-2-2007/pm-27-4-07,param=.html.
  • Bundesministerium für Gesundheit "Fragen und Antworten zum Thema Nichtraucherschutz" www.bmg.bund.de/cln_040/nn_600110/DE/Themenschwerpunkte/Drogen-und-Sucht/Tabak/FAQ-Nichtraucherschutz.html.
  • DEHOGA Bundesverband. "Rauchverbot in der Gastronomie. DEHOGA legt Verfassungsbeschwerde ein." Press release 7/46, 21 December 2007.
  • European Network for Smoking Prevention "Effective tobacco control policies in 28 European countries" 10/2004 www.ensp.org/files/effectivefinal2.pdf.
  • Focus. "Rauchverbot: Wo es gilt und welche Strafen drohen" 01.08.2007 www.focus.de/politik/deutschland/gesundheitspolitik/rauchverbot_aid_68447.html.
  • Greven, Ludwig. "Rauchen regional". Die Zeit. 26.03.2007 www.zeit.de/online/2007/13/nichtraucherschutz-Kommentar.
  • "Saarland stellt sich gegen generelles Rauchverbot" Hamburger Abendblatt. 27 June 2007 www.abendblatt.de/daten/2007/06/27/762183.html.
  • "EIn Lobbyist weniger in Berlin und Brüssel. Veband der Cigarettenindustrie löst sich auf." Handelsblatt. 29 June 2007. www.handelsblatt.com/news/_pv/_p/200038/_t/ft/_b/1287848/default.aspx/index.html
  • Löwisch, Georg. "Tabakformen: Wirte bleibt brav." taz - die tageszeitung. 9 January 2008. www.taz.de/nc/1/archiv/print-archiv/printressorts/digi-artikel/?ressort=in&dig=2008%2F01%2F09%2Fa0055&src=GI&cHash=ee136181e2
  • "Neu ab 2008: Fast flächendeckendes Rauchverbot." MDR. 3 January 2008. www.mdr.de/ratgeber/neuab2008/5126205.html.
  • "Mediziner schimpfen über Ausnahmen beim Rauchverbot". Spiegel online. 22 March 2007.
  • "Gastwirte prüfen Klagen gegen Rauchverbot". Südkurier. 4 August 2007. www.suedkurier.de/nachrichten/brennpunkte/art407,2735964.

Reform formerly reported in

Health vs. profit: Anti-smoking efforts in Germany
Process Stages: Strategiepapier, Idee

Author/s and/or contributors to this survey

Kerstin Blum

Reviewer: Sophia Schlette

/www.hpm.org/en/About_Us/About_the_project/Project_team.html

Empfohlene Zitierweise für diesen Online-Artikel:

Kerstin Blum. "Ban on smoking in Germany: a never ending story?!". Health Policy Monitor, January 2008. Available at http://www.hpm.org/survey/ger/a10/3