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Failure of policy regarding smoke-free bars in the Netherlands

Mariaelena Gonzalez, Stanton A. Glantz
DOI: http://dx.doi.org/10.1093/eurpub/ckr173 139-145 First published online: 5 December 2011

Abstract

Background: Tobacco companies consistently work to prevent and undermine smoke-free laws. The tobacco industry and its allies have funded hospitality associations and other third parties to oppose smoke-free laws, argue that smoke-free laws will economically damage hospitality venues, promote ventilation and voluntary smoker ‘accommodation’ as an alternative to smoke-free laws, and to challenge smoke-free laws in court. In 2008, the Netherlands extended its smoke-free law to hospitality venues. Methods: We triangulated news articles, government documents, scientific papers, statistical reports and interviews to construct this case study. Results: Despite widespread public support for smoke-free hospitality venues, opponents successfully represented these laws as unpopular and damaging to small bars. These challenges and related smokers’ rights activities resulted in non-compliance among all bars and reinstating an exemption for small, owner-run venues. This policy reversal was the result of a weak implementing media campaign (which failed to present the law as protecting nonsmokers), smoking room exemptions and reactive (vs. proactive) measures by the Ministry of Health and civil society. Conclusion: The policy failure in the Netherlands is the result of poor implementation efforts and the failure to anticipate and deal with opposition to the law. When implementing smoke-free laws it is important to anticipate opposition, used the media to target non-smokers to reinforce public support, and actively enforce the law.

Introduction

The tobacco industry has made maintaining smoking in hospitality venues a priority worldwide1–5 by organizing and sometimes financing hospitality1,6 and ‘smokers’ rights’ groups1,4,7–9 to oppose smoking restrictions. Bars are particularly important to the tobacco industry because they are adult only venues where young adults can be targeted.10–12 As claims of adverse economic effects on restaurants have lost credibility,13,14 the tobacco industry has focused on bars as a wedge to undermine 100% smoke-free laws,4,15,16 including in the Netherlands.

In July 2008, the Netherlands ended hospitality's exemption to legislation[1] which prohibited smoking in most public places. Despite strong initial public support for smoke-free hospitality venues, opponents successfully represented smoke-free regulations as harmful to small and employer-run bars and encouraged non-compliance in all bars. In November 2010, the Minister of Health announced that bars without employees under 70 m2 would be re-exempted from the smoke-free law[2] and non-compliance continued into 2011.[3] This case illustrates that strong tobacco control policies are not enough; it is important to have a strong implementation campaign that anticipates continuing organized opposition and a law that does not allow exemptions.

Methods

We triangulated17 news articles, government documents, scientific papers and other media with 14 interviews conducted between January 2010 and February 2011 to construct this case study. From May to September 2010, we searched the entire Legacy Tobacco Documents Library (legacy.library.ucsf.edu) of tobacco company documents between May and September 2010 beginning with ‘the Netherlands’, politicians, and other named individuals and organizations using standard techniques,18 yielding five relevant documents. An expanded ‘Methods’ section is available in the Supplementary Data at the EJPH website. A Supplementary bibliography listing original source materials (indicated in the text in square brackets) and interviewees is in the Supplementary Data at the EJPH website.

Results

The Netherlands and smoke-free policy before 2005

In 2002, the Dutch Parliament amended the Tobacco Act to require smoke-free workplaces and public transportation, and strengthened enforcement provisions.[1,4–6] The Act granted the Minister of Health, Welfare and Sports (Minister of Health) authority to issue regulations granting exemptions.[1] After intensive lobbying by the hospitality industry (Koninklijke Horeca Nederland, KHN), Parliament passed the Amendment with the understanding that hospitality would be initially exempted, and smoke-free environments phased in over time.[1],19 The 2005 and 2006 plan goals were not met.[1,7],19

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]

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]

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]

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]

Claims of economic loss and failure to generate positive media coverage

After July 2008, the smoke-free coalition started to dissolve, leaving the health NGOs, and STIVORO as the NGOs working to support the regulations. Throughout 2008–2009, these NGOs continued seeking positive media coverage, but failed to generate much sympathetic coverage. They highlighting the protection of workers, health benefits of smoke-free air and the fact that there had been no adverse economic effects in other countries.[17] They also publically recognized venues that complied with the regulations.[19,21] The health organizations and STIVORO attempted to pressure Parliament to respond to the increasing violations. The Asthma Fund ran a survey in 2008 in which members identified adverse experiences with smoking in bars and sent the results to members of Parliament.[21] Perhaps, because of the dominance of the pro-industry messaging in the media, the health groups did not gain much traction.

Continuing claims of economic losses

The worldwide economic collapse that began in 2007 (and continuing in 2011) affected public perceptions. KHN hired a research firm, which issued a report in October 2008 claiming half the economic loss bars experienced was due to smoke-free regulations.[18]

The Minister of Health commissioned the Centraal Bureau voor de Statistiek (the governmental statistical agency) and TNS NIPO (a market research firm) to analyse prices, sales volume, sales trends and revenue growth, as well as consumer confidence to test these claims.[18] These two analyses concluded the decline in the hospitality sector began before the regulations took effect and that all sectors of the hospitality business were reporting sales loss due to a variety of factors including the worldwide recession (but not including smoke-free regulations).[18,30] There was no difference in sales between venues with and without smoking rooms.[18,30]

In December 2008, the Minister wrote Parliament outlining these findings.[18] Small bar owners and their allies continued to claim economic loss, and Parliament continued to ask Minister to investigate alternatives to smoke-free regulations and respond to questions regarding these claims in 2009.[46,47]

Continued declines in compliance and support

In December 2008, a European Commission survey of tobacco control attitudes in EU countries showed that in the Netherlands, 52% opposed regulations.23 To study the extent of non-compliance, the VWA commissioned an anonymous quarterly compliance survey.[38] The late 2008 to early 2009 almost a quarter of the bars and nightclubs were non-compliant, compared to only 5–10% in other hospitality areas (figure 3).[38]

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]

Political fallout

In spring 2010, the Dutch coalition government collapsed over involvement in Afghanistan. Shortly, after the 2010 June election, members of Volkspartij voor Vrijheid en Democratie (VVD) stated that they wanted bars without employees to determine their own smoking policies.[16, 27] [A 2011 Dutch television documentary entitled ‘Minister van Tabak’[69,70] (Minister of Tobacco) presented evidence that Minister Schipper and other VVD members had contact with tobacco and KHO lobbyists as part of efforts to oppose the restaurant and bar restrictions as early as 2007.] In September 2010, the new governing coalition included the VVD and the Christen-Democratisch Appèl (CDA). The coalition agreement included exempting small, owner-run bars and reducing funding for tobacco control.[13] In November 2010, the new Minister of Health, Edith Schippers (VVD), wrote Parliament announcing her intention to exempt owner- or family-run bars under 70 m2 from the Tobacco Act. As a result, compliance for hospitality sectors other than bars was above 90%, but only 50% in bars and nightclubs.[3]

Discussion

The case of the Netherlands shows the importance of framing the discussion of smoke-free laws. The Ministry's poorly designed media campaign generated sympathy for smokers and the cigarette instead of promoting the health benefits of the new regulations for workers and the nonsmoking public, combined with the exemptions clause in the Tobacco Act, provided a foundation from which opponents used small bars as a wedge to undermine smoke-free hospitality venues, encourage non-compliance among all bars and re-exempt owner-run bars.

While the tobacco companies did not play an open public role in these events, the strategies and rhetoric deployed to oppose the smoking restrictions parallels tobacco industry global strategies, including arguing that smoke-free laws represent a form of intolerance and extremism2,9,21,24 and that, despite consistent evidence to the contrary,25–27 smoke-free laws harm bars. Other industry tactics are to encourage and publicize venues flouting the law to create the perception of widespread noncompliance, to encourage (and fund) hospitality venues to challenge the law in court, and to promote ventilation.1,3–6,8,15,16,28,29

Many of the Minister of Health's decisions regarding implementing and enforcing smoke-free venues were consistent with WHO best practices, including treating all hospitality venues the same, including both civil society and the hospitality industry in implementation discussions, and promoting smoking cessation together with smoke-free laws.30 The Ministry educated business owners and building managers regarding compliance, eventually aggressively enforced the law, and arranged for independent compliance monitoring. The health NGOs and STIVORO, together with the smoke-free partnership, engaged the public during 2006 and 2007 to build widespread support for ending hospitality's exemption from the Tobacco Act. The 2006 policy package that they sought in Parliament was consistent with WHO best practices. Once the law took effect, the health organizations worked to promote and defend it.

At the same time, neither civil society nor the Ministry anticipated heavy opposition, including the use of third parties by smokers’ rights groups. Minister Klink included the tobacco industry as a stakeholder in the policy-making process. The Ministry's failure to use appropriate and continuous messages promoting the law's health benefits was a key determinant of the outcome because it allowed opponents to control public perception and promote small bars as the victims of the law.

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.

Limitations

A limitation to all qualitative methodologies to study high stakes policy processes is the possibility of obtaining incomplete or biased information. We compensated for these limitations by triangulating17 informant accounts against each other and publicly available documents. While there are often differences of opinion and recollection of events, it was possible to arrive at an overall consensus regarding the history of the policy-making process. While the authors attempted to interview representatives of as many stakeholders as possible, representatives of SSI, VNK and KHN did not respond to requests for interviews.

Conclusion

Owner-run bars in the Netherlands have been used by tobacco industry allies as a wedge to undermine public perception of and encourage noncompliance with smoke-free regulations. (Compliance remained high in other hospitality venues). The reversal in the Netherlands was the result of a failure to present and defend the law as a way to protect non-smokers, together with continuing to allow smoking rooms. There is a danger that the Netherlands may be cited by the tobacco industry and its allies as evidence that 100% smoke-free bar laws are unpopular and unenforceable and that tobacco control best practices embodied in the FCTC do not work. Partial legislation in Europe was promoted by the tobacco industry as the ‘Spanish model’.35 In 2011, Spain strengthened its law and became 100% smoke-free. It remains for advocates to see that the Netherlands follows suit to avoid having a new ‘Netherlands model’ of partial exemptions to bar laws emerge in Europe.

Supplementary data

Supplementary data are available at EURPUB online.

Funding

This work was supported by National Cancer Institute at the National Institute of Health (grants number CA-113710, CA-87472). The funding agency played no role in the selection of topic, conduct of the research or preparation of the article.

Conflicts of interest: In 2010, S.A.G. presented preliminary findings regarding this case at a conference supporting tobacco control in the Netherlands sponsored by STIVIRO, which paid his travel expenses. In 2010, Drs. S.A.G. and M.G. drafted briefing papers regarding industry interference in tobacco control policy-making and comparisons of the Netherlands to other case studies that were provided to STIVORO.

Key points

  • Despite initial widespread support for implementation of smoke-free hospitality venues in the Netherlands, opponents have successfully represented these laws as unpopular and damaging to small bars.

  • These challenges were part of smokers’ rights activities, and resulted in non-compliance among all bars and the exemption of small, owner-run venues from the law.

  • As a result, incomplete pre-implementation strategy, poor implementation, lack of support from the government generally and weak NGO mobilization opened possibilities for weakening the law through exemptions.

  • Policy failure in the Netherlands is the result of poor implementation efforts and the failure to anticipate opposition to the law, and not a result of the failure of the concept of smoke-free policies or the fact that Dutch people are not ready for smoke-free laws.

  • When implementing smoke-free laws, it is important to anticipate opposition used the media to target non-smokers to reinforce public support, and actively enforce the law.

Acknowledgements

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.

Footnotes

  • *References cited in square brackets are Supplementary references

References

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