March 26, 1999

To:Board of Health

From:Dr. Sheela Basrur, Medical Officer of Health

Subject:A Harmonized Environmental Tobacco Smoke (ETS) By-law for City of Toronto: Community Input Process

Purpose:

The purpose of this report is to outline a process to obtain community input on proposed options for a harmonized ETS by-law and strategies to achieve smoke-free public places in the City of Toronto as set out in the attached document dated March 26, 1999 from the Medical Officer of Health, entitled "A Harmonized Environmental Tobacco Smoke (ETS) By-law for the City of Toronto".

Financial Implications:

None, for the public consultation process prior to Council approval. Additional one-time funding will be required in 1999 and 2000 for public communication, for which provincial funding will be sought.

Recommendation:

It is recommended that the Board of Health:

1. Adopt the process outlined in this report to seek public input on the proposed ETS by-law for the City of Toronto, and
2. Forward the attached policy options and recommendations paper to community councils for staff presentation and deputations.

Background and Discussion:

Historically, public consultation has played an important part in the development of Environmental Tobacco Smoke (ETS) by-laws in all of the former municipalities. Public and stakeholder input towards the policy options has been obtained through a variety of means, including community meetings, focus groups and public opinion surveys. Public input to the proposed by-law has been formally sought through deputations at boards of health and at city councils.

During the past year, Toronto Public Health has consulted with the health and hospitality sectors as well as the public, on an Environmental Tobacco Smoke by-law that is protective of health for the new City of Toronto. The attached document from the Medical Officer of Health provides a comprehensive review of issues related to Environmental Tobacco Smoke, along with policy options and recommendations for a new by-law.

Public and stakeholder input on the recommendations can be obtained through a deputation process similar to that followed in the past, with the addition of deputations at community councils to ensure local input. The following process and time-line is recommended:

Conclusion:

The public consultation process outlined in this report will ensure input from a variety of interests prior to the by-law's enactment by Council.

Contact Name:

Liz Janzen

Regional Director, South Region

Tel:392-7458

Fax:392-0713

Dr. Sheela V. Basrur

Medical Officer of Health

A Harmonized Environmental Tobacco Smoke

(ETS) By-law for the City of Toronto

Policy Options and Recommendations

For Public Discussion

Toronto Public Health

April 6, 1999

Introduction:

The purpose of this report is to describe the outcome of stakeholder consultations and to outline policy options with recommendations from Toronto Public Health for a harmonized Environmental Tobacco Smoke (ETS) by-law and strategies to achieve smoke-free workplaces and public places.

Recommendations:

(1)That workplaces in the City of Toronto be smoke-free, except in fully enclosed, separately ventilated designated smoking rooms (DSRs) that make up no more than 25% of the work space, and which no employee is required to enter;

(2)That the six existing municipal by-laws respecting smoking in public places be replaced with one ETS by-law from one of the two following options:

(i)That public places be smoke-free, except for restaurants, bars, bowling centres, casinos and bingo and billiard halls, which may have unenclosed smoking in 25% of space until April 30, 2001 when they become smoke-free;

OR

(ii)That public places be smoke-free, except for restaurants, bars, bowling centres, casinos, billiard and bingo halls, which may have 25% of their space for unenclosed smoking for a time limited period, such that:

(a)Restaurants and bowling centres become smoke-free April 30, 2001, and

(b)Casinos, bars, billiard and bingo halls become smoke-free May 3, 2004, with the distinction between bars and restaurants being that a bar is where alcohol is served and where admittance is restricted to persons 19 years of age and older at all times.

(3)That one of the following options be selected regarding designated smoking rooms (DSRs) in public places:

(i)No DSRs, except where permitted in the Tobacco Control Act, 1994, (e.g. Homes for the Aged);

(ii)DSRs up to 25% of space; OR

(iii)DSRs up to 50% of space.

(4)That the Corporation of the City of Toronto develop a corporate policy to prohibit smoking in all municipal facilities including workplaces, whether located in municipal or commercial buildings, except in such cases where this space is reserved for a private function such as a wedding. Where exemptions apply, they should be time limited until April 30, 2001.

(5)That the Commissioner of Urban Planning and Development Services be requested to consult with the Medical Officer of Health regarding revisions to the Licensing By-law to ensure these revisions have regard for the ETS By-law.

(6)That the new harmonized by-law be implemented three months following its enactment by City Council.

Background:

At its meeting January 26, 1998, the Board of Health requested the then Acting Medical Officer

of Health to report back on the status of ETS by-laws in the new City along with suggestions for next steps towards reaching smoke-free workplaces and public places in the amalgamated City of Toronto.

At its meeting February 4 to 6, 1998, City Council referred a motion to the Board of Health for recommendations and public hearings on phasing in a harmonized smoke-free by-law for the entire City which would be protective of health .

The Medical Officer of Health reported to the Board of Health at the April 21, 1998 meeting on the status of ETS by-laws and recommended that stakeholders be consulted regarding the components of a uniform by-law and strategies to achieve the goal of smoke-free public places.

Upon the request of the Board of Health, the Medical Officer of Health made a presentation on a Stakeholder Consultation Plan for an ETS by-law at the June 23, 1998 Board meeting.

The changes proposed by Toronto Public Health for a harmonized ETS by-law and the eventual attainment of smoke-free public places are highlighted in Section 8. The rationale for the proposed changes is summarized below.

Discussion:

(1)GOVERNMENT RESPONSE TO ENVIRONMENTAL TOBACCO SMOKE (ETS)

During the past 20 years, governments across North America have moved steadily toward ensuring that residents, workers and visitors are fully protected from ETS by implementing legislation that prohibits smoking in the workplace and in public places. Currently 76 per cent of Toronto residents do not smoke tobacco, but are exposed to ETS in a variety of public places, such as restaurants, bars, bowling centres, billiard and bingo halls and other entertainment centres, or at work if they are employed in the hospitality industry. Each of the six former municipalities has a by-law requiring employees to be protected from ETS, with the exception of employees in the hospitality industry. This report focuses on harmonizing the six ETS by-laws as a first step to providing full protection for all employees, as well as for the non-smokers who visit these public places.

The omission of restaurants, bars and other entertainment facilities from ETS by-laws is being addressed in jurisdictions across North America. In the State of California all public places and workplaces, including restaurants and bars, are smoke-free. The Capital Region of British Columbia introduced smoke-free restaurants and bars Jan 1, 1999. The City of Vancouver prohibits smoking in restaurants that allow children. Closer to home, municipalities that have passed progressive ETS by-laws include Vaughan, Guelph, Windsor, London and Waterloo. (See Appendix V for a detailed outline).

(2)HEALTH HAZARDS OF ENVIRONMENTAL TOBACCO SMOKE (ETS)

The move to full employee and public protection is a direct result of increasing scientific evidence that links regular exposure to ETS to a variety of illnesses in non-smokers, including lung and heart disease, asthma, and numerous childhood conditions. The full impact of ETS on health is not yet known, but the direct link to ill health is not surprising given that ETS contains 4,000 chemicals; among them benzene, formaldehyde and arsenic. More than 43 of these chemicals are known to cause cancer in humans.

The most immediate effects of exposure to ETS occur in children and in people with chronic lung and heart conditions. They range from itchy eyes, runny nose, coughing, wheezing and sore throat to exacerbated asthma attacks. Children, whose developing bodies are especially susceptible to poisonous fumes inhaled at home, in restaurants, and in other places with open smoking (Glantz, 1995), because they breathe in more air compared to their body weight than an adult and absorb more harmful chemicals than an adult. With 11% of children affected by asthma, any exposure to ETS is of significant concern. Other common childhood illnesses linked to ETS include ear infections and pneumonia. The more insidious long term effects of ETS can emerge later in life as full blown cancers or heart disease. It is estimated, for example, that 3000 non-smokers die each year in Canada from preventable heart disease attributed to exposure to ETS. Another 330 die from preventable lung cancer. The health effects experienced by individuals depend upon such factors as personal sensitivity and frequency of exposure. As with some other cancer causing agents, such as asbestos, health experts generally agree that there is no safe level of exposure to ETS.

As the scientific evidence on ETS has increased so has public awareness of its dangers. More than 90 per cent of Toronto residents now believe ETS harms health (Smaller World Communications, 1998, Appendix VIII), and one third of all Ontario residents avoid certain bars and restaurants because they are too smoky (OTRU, 1997/1998). Given that non-smokers are protected from ETS at work and in many public places, there is public demand for smoke-free places, including restaurants and entertainment facilities, such as bowling centres, casinos, billiard and bingo halls and bars. It should be noted that the provision of separate but unenclosed spaces for smoking in public places is not health protective to non-smokers, or to employees, since ETS travels freely through the air. Full protection is achieved only in a smoke-free environment, or where there is a fully enclosed and separately ventilated DSR.

(a)Exposure to ETS in Restaurants, Bars and Entertainment Facilities

It is troubling that the least protected employees in the new City of Toronto, are those working in places with the highest levels of ETS (See Appendix I). A 1994 review of many studies on indoor air quality concluded that, on average, ETS levels in restaurants were 1.6 to 2.0 times higher than in other workplaces that permit smoking, and 1.5 times higher than in homes where at least one person smokes (Siegel, 1993). ETS levels in bars were found to be 3.9 to 6.1 times higher than in workplaces that allow smoking, and 4.4 to 4.5 times higher than in homes where at least one person smokes (Siegel, 1993). The same review concluded that the increased risk of lung cancer among food service workers may be as high as 50% compared with the general population. In a recent study, San Francisco bartenders reported a substantial reduction in ETS exposure after the State of California made bars smoke-free. The study concluded that implementation of smoke-free legislation has an immediate beneficial effect on the respiratory health of employees (Eisner et al, 1998). The exposure of employees, children and susceptible adults to the high levels of ETS in restaurants, bars, bowling centres and bingo and billiard halls is a serious health concern. It is important to note in this regard that youth are exposed to ETS not only as patrons of these places, but also as workers since youth make up a significant percentage of food service workers.

(3)STAKEHOLDER CONSULTATION

Not surprisingly, moves to protect non-smoking employees and the non-smoking public from exposure to ETS in the workplace have been welcomed by the majority of non-smokers and health experts, and resisted by those who believe such laws are unworkable, or will have a negative impact on business. The introduction of the workplace by-law in 1979 in the former City of Toronto, for example, engendered many complaints in its initial stages, including some from individuals who felt it was an unnecessary infringement of their "right" to smoke.

To guide development of the by-law, Public Health consulted with the public and with stakeholders from the hospitality and health sectors, including health agencies, hospitality organizations and operators of food premises, bowling centres and bingo and billiard halls. The hospitality industry was asked for advice on the development of a consultation plan that would be used to gather information from interested parties in the hospitality/entertainment sector on the components of a uniform by-law for the city, as well as on strategies to achieve smoke free public places. The consultation included a public opinion survey, focus group discussions, and meetings. As well, stakeholders were invited to provide written submissions to the Board of Health, or to depute to the Board during future public hearings on the proposed by-law. Results from the community consultation were similar to those found during extensive consultations carried out by the six former municipalities of Toronto in past years. The following is a summary of the results.

(a)Public opinion survey

An independent research firm was contracted to conduct a public opinion survey to gauge the level of support regarding details of a harmonized ETS by-law for the city, and to provide ideas on how to move forward to smoke-free public places. The survey of a random selection of 1,000 Toronto residents was done by telephone in October 1998. Survey results show that more than 90% of people believe ETS is harmful to non-smokers. This is in line with Health Canada's National Population Health (Cycle 2, 1996/97) which found that 77% of current smokers and 88% of non-smokers believe ETS can cause health problems in non-smokers. The majority of respondents in the public opinion survey believe the best way to reach smoke-free status is by increasing the percentage of non-smoking space each year and that fully enclosed and separately ventilated designated smoking rooms should be permitted. Support for non-smoking space was higher among non-smokers and among individuals who believe ETS is harmful to non-smokers. These individuals support a significantly greater percentage of space for non-smoking patrons across all public places. (See Appendix VIII for detailed results). This highlights the need for comprehensive education campaigns with regard to the health risks of ETS With respect to the harmonized by-law, the survey showed that 78% of residents believe restaurants should be at least 75% non-smoking.

(b)Health agencies

Health agencies were consulted by phone and/or invited to meetings. Not surprisingly there is a high level of support among agencies for achieving smoke-free public places as soon as possible, particularly given the increased smoking rates in young people and the epidemic of lung cancer in women. While ETS by-laws are primarily aimed at protecting non-smokers and children from ETS they also help reduce direct smoking rates by reducing the number of places where people can smoke. Health agencies are particularly cognizant of studies that show that youth who do not take up smoking in their early and mid teens are much less likely to become regular smokers later in life. Some agencies believe that although DSRs with separate ventilation may be a necessary step for restaurants, bars and entertainment facilities to become completely smoke free, no worker should be required to enter a DSR as part of their job. The majority of agencies said that where public places are not already smoke-free, a harmonized by-law should require a minimum non-smoking area of 75% as a step towards becoming smoke-free.

(c)Hospitality organizations and food premise operators

During the past decade public health departments in the six former municipalities have worked with representatives of the hospitality industry and owner/operators to obtain input on various public health issues, including ETS by-laws. In past consultations with staff, the Ontario Restaurant Association (ORA) has suggested: allowing smoking in bars and bar areas, in "smoke rooms"; increasing non-smoking areas incrementally, rather than going directly to smoke-free; and allowing individual operators to designate their establishments a "smoke house". Since the beginning of this current consultation and research process, various approaches have been used to solicit input on a harmonized by-law, including letters, telephone conversations and meetings. Staff met with the ORA and the Ontario Hotel and Motel Association (OHMA) to plan the consultation process. Both organizations recommended focus groups as the best way to get direct input from operators of food premises. A total of 38 operators from six former municipalities attended the focus group discussions. The executive summary of the report is attached as Appendix VII. In March 1998, Ryerson Polytechnic University conducted a random survey of 200 food premise operators on ETS by-laws in the former city of Toronto. (Sly, 1998). The survey found that about half of the respondents wanted either no change in current by-laws, or a more restrictive by-law. The other half preferred a less restrictive by-law. The survey found that operator attitudes towards ETS by-laws are highly associated with whether smoking is allowed in their premises (i.e. operators of a smoke-free premises are more likely to call for a more restricted by-law than operators of premises which allow smoking).

In general, hospitality organizations and food premise operators are sympathetic to health concerns related to ETS with some operators preferring a smoke-free environment for themselves and their families. However they are more concerned about any potential for lost business. They believe that the cost of providing fully enclosed and separately ventilated DSRs is prohibitive and not structurally feasible for many establishments. They believe the level of non-smoking seating should be market driven. The ORA suggested a multi-faceted approach to a by-law amendment should be considered to address the uniqueness of establishments within the food-service industry. There is strong advocacy for ventilation systems as a way to deal with ETS.

(d)Bowling centre operators and bingo hall operators

Telephone consultations were conducted with a random sample of bowling centre and bingo hall operators; 17 of 34 bowling centres and 12 of 22 bingo halls were included for consultation. Because of the similarity in responses, the results have been combined. In general, these operators believe they attract a larger percentage of smokers than found in the general population and have strong concerns about the economic impact of ETS by-laws. The majority of operators support a harmonized standard of 60% non-smoking space, reflective of the current average across the former municipalities. There is mixed support for DSRs and the eventual achievement of smoke-free. Responses ranged from no support for smoke-free, to support if required province-wide. Some operators did identify an interest in ideally operating smoke-free establishments.

(e)Billiard hall operators

Telephone consultations were conducted with a systematic sample of 21 billiard hall operators. Respondents recommended a harmonized smoking standard ranging from completely open smoking to 50% non-smoking, less than the current average of 60%. There was no general support for smoke-free and only five operators indicated the years 2001-2005 as a target for being smoke-free. Economic concerns were most commonly stated as the reason for the low level of support. There was general support for DSRs. The majority of operators said their clientele is largely composed of smokers.

(4)ISSUES RELATED TO BY-LAW DEVELOPMENT

(a)Economic hardship

There is considerable concern about any possible economic loss resulting from ETS by-laws. During this consultation, many members of the hospitality industry said they would prefer to be smoke-free but fear they will lose business if a smoke-free by-law is implemented. A review of many studies indicates that over the long term there is no overall negative impact on business and that the effects of such by-laws are either neutral or result in positive economic gain as non-smokers replace smokers. It should be noted that 700 Toronto restaurants are voluntarily smoke-free. However, there may be an initial negative impact in some establishments where the majority of patrons are smokers. Some jurisdictions in the United States have included a hardship clause in smoke-free legislation, also known as a variance or waiver, which exempts restaurants from smoke-free by-laws if they can demonstrate financial hardship in complying with the law. The burden of proof is placed on the applicant to demonstrate both a loss of business, and that the law is the cause of that loss. (See Appendix II for detailed information)

(b)Differentiating between restaurants and bars

There are more than 6,000 restaurants in the City, about half of which are in the former city of Toronto. They vary from family type establishments serving no alcohol, to cafes, pubs and establishments which cater mainly to adults and offer a variety of food and entertainment, including dancing, billiards and live music. For some of these establishments, the sale of food is incidental to the sale of alcohol and provision of entertainment. During past public consultation on smoke-free public places, some industry advocates have requested that bars be treated differently than restaurants, as is the case in some other municipalities, especially outside Ontario. As well, recent surveys (Appendix VII and VIII) suggest somewhat lower levels of public support for smoke-free bars. The concept of differentiating between restaurants and bars has been extensively researched by City staff now and in the former municipalities, and has been found to contain numerous problems. These problems arise primarily because the Ontario Liquor Licence Act does not distinguish between restaurants and bars for licensing purposes. Instead it provides a single class of liquor licence for all establishments that serve alcohol and, in an attempt to reduce public harm associated with alcohol use, establishments that serve alcohol must also serve food.

Without this distinction, the City must develop its own method of deciding what is a restaurant and what is a bar. There is no easy way to do this because restaurants often change their services and primary mode of business depending on the time of day, or day of the week, so that an establishment may function primarily as a restaurant during the day and as a bar at night. City staff have considered distinctions based on an establishment's percentage of alcohol sales and the age of its patrons; e.g. exclusion of children and youth under 19 years of age, from premises that allow unenclosed smoking. Recommendation 2 (ii), which contains an age exclusion, is designed to help protect children from the effects of ETS and is in keeping with other health protective provincial legislation aimed at youth that prohibits the sale of cigarettes to those under 19.

Only the former city of Scarborough ETS by-law defines restaurants separately from bars, essentially categorizing bars as establishments that derive at least 75% of revenues from the sale of alcohol. Although the by-law exempts bars from any smoking restrictions, it also permits any eating establishment to have smoking in up to 100% of the premises, based on customer demand. In practice therefore it has not been necessary for an establishment to identify itself as a bar to be exempt from smoking restrictions. Therefore it is recommended that in the by-law for the new City of Toronto, bars be distinguished from restaurants based on the existence of a liquor licence combined with a restriction on the age of patrons to 19 years and over. Nineteen is selected as the age limit as this is the minimum legal age for purchasing tobacco products and the minimum age for legal alcohol consumption. However, it should be noted that youth age 18 would remain eligible to work in bars.

Although some jurisdictions have differentiated between bars and restaurants, the fact that there is an increased ETS exposure risk in bars (Siegel, 1993) should be considered sufficient health grounds to make all such premises smoke-free. However, should the City wish to phase in the elimination of smoking in bars, Recommendation 2, Option (ii) is recommended. The administrative procedures for implementation must clearly differentiate these establishments and minimize any burden placed on the City and the hospitality industry.

(c)Ventilation

Ventilation technology is often proposed as an alternative to smoke-free by-laws by the hospitality industry. While some ventilation systems have been utilized to improve air quality, the improvement is purely aesthetic. The concept that ETS could be reduced to "acceptable levels" is also flawed as there is no safe level of ETS. Studies conducted in the former city of Toronto and elsewhere clearly indicate that non-smoking areas in restaurants that are not physically separated from the smoking area and not separately ventilated offer little or no protection from exposure to ETS (Abernathy & O'Grady, 1996; see Appendix II for descriptions of ventilation systems currently available.) Decreasing the concentration of ETS through exhaust or dilution offers less protection than restricting smoking to a percentage of the premises.

In order for a ventilation system to be considered effective it must be capable of removing ETS in both the gas and the particulate phase. According to ventilation experts such a system does not exist. In order to achieve a de-minimus risk (1 death/million) for lung cancer the ventilation rate in a hospitality establishment with unenclosed smoking would have to be increased 40,000 times, creating wind speed similar to that of a severe tornado. Accordingly, many experts advise that the most appropriate use for ventilation is to remove ETS from fully enclosed designated smoking rooms.

At a meeting Nov. 24, 1998 to discuss ventilation technology, one expert in ventilation engineering proposed a scenario in which an establishment could have an open passage way between the smoking and non-smoking rooms, provided that the opening was constructed with a tunnel that protruded at least eight feet into the non-smoking area. However, other experts at the meeting were skeptical of this theory, feeling that complete structural separation of smoking from non-smoking areas is essential. A recent article in a hospitality industry publication also concluded that "in the majority of conventional forced air heating/ventilation/air-conditioning systems, air is typically recirculated with generally only 10 to 15 percent fresh air added per hour. Therefore, even when the best efforts are made to physically isolate smokers from non-smokers, a single ventilation system will distribute some smoky air throughout a restaurant." (LaRiviere, Feb. 98)

If an effective ventilation system becomes available, there are still practical issues to consider. Ventilation systems can be expensive to design and install and there are physical limitations as to the type of buildings that can be retrofitted. As well, heating and cooling costs would rise with the required increase of air flow. Without regular maintenance the effectiveness of these systems declines very quickly, which presents particular difficulties for enforcement. While the system design and installation would require approval from the building department, the responsibility to monitor the operation, maintenance and overall effectiveness would be passed on to other enforcement staff. Even if one assumed the system was on and operating, the task of checking the filters, measuring air flow and grading effectiveness could be onerous.

Without the possibility of removing ETS from the air, the most logical option is to remove the source of the ETS. If at some point in the future a ventilation system is developed that could provide air quality equivalent in health terms to that in a smoke-free environment it could be considered as an alternative to a ban on smoking.

The ASHRAE standard:

In 1989, the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) developed a ventilation standard applicable to all indoor or enclosed spaces that people may occupy. The current edition is entitled ANSI/ASHRAE 62-1989 Ventilation for Acceptable Indoor Air Quality. This standard is the basis for almost all ventilation requirements contained in North American building codes. The purpose of the standard is to specify minimum ventilation rates and indoor air quality that will be acceptable to human occupants with the intent of minimizing the potential for adverse health effects. However, the standard does not ensure protection from ETS.

(d)Designated Smoking Rooms (DSRs)

Most of the existing ETS by-laws in the city permit DSRs in workplaces. This is because employees are not required to enter these rooms as part of their work duties. DSRs are not recommended for public places on health grounds because employees in public places should be provided with the same protection from ETS, and it would be impractical to expect them not to have to enter DSRs in the course of their work. (See Appendix IV for discussion of DSRs). Nonetheless, DSRs may be considered as a means of easing the impact of the by-law on smoking patrons. In the former city of Toronto, DSRs have been approved for fewer than 20 restaurants. The Board of Health/City Council will have to decide what to do about these existing DSRs. The Provincial Tobacco Control Act currently permits DSR's in certain public places, including homes for the aged and hospitals. For consistency, this policy should remain in effect for the present time.

(e)Enforcement

As with many municipal by-laws, ETS by-laws are largely self-regulating through voluntary compliance by owners/operators, employers, staff, and public over an introductory period of 6-12 months. Public Health staff will be responsible for enforcing the ETS by-law, primarily through education of operators and ticketing, if necessary. To make a new ETS by-law as understandable and as easily enforceable as possible, it must apply equally across the city and have clear standards for the size and location of smoking and non-smoking space. Education of all parties, including the public, employers, owners, operators and staff, is essential prior to and during implementation to ensure everyone understands the reason for the by-law, and their responsibilities under it. The hospitality industry feels strongly that the public must receive clear information about where they can and can't smoke. In general, the greater and more restrictive the change, the greater the need for education and enforcement. As with other by-laws to protect health, the owner/operator should be responsible for complying with the by-law, removing ashtrays from non-smoking areas, posting No Smoking and Health Warning signs to ensure patrons are aware of the by-law and the health risks of ETS, providing legal seating space and operating a smoke-free establishment where applicable. Penalties for non-compliance range from $205 for a ticket to a maximum $5,000 for a prosecution and conviction in Court.

(5)BY-LAW INTERPRETATIONS

The by-law will set out classes of establishment by which to define public places. These will include public places that serve food whether or not they serve alcohol, bowling centres, billiard halls, and gaming halls (e.g. bingo). By-law requirements will be interpreted and applied to these and other public places as outlined below.