Smokeasy: A case study of enforcement and penalties of smoke-free indoor air bans in workplaces and restaurants in three states Ryan Patrick, J.D. and Shelby Eidson, J.D. The MayaTech Corporation Regina el Arculli, M.A. National Cancer Institute November 9, 2010 Presented at the American Public Health Association Annual Meeting Denver, CO

Dangers of Secondhand Smoke Dangers of Exposure to Secondhand Smoke Premature death Adverse effects on the cardiovascular system Heart and lung disease Cancer (10 types) No Safe Exposure Level to Secondhand Smoke According to the Surgeon General, methods that are not effective: Separating smokers from non-smokers Cleaning the air Ventilating buildings The Surgeon General says the only effective method is to ban indoor smoking.1

State Legislation on Secondhand Smoke in Restaurants, Bars, and Workplaces Twenty-four states (47%) prohibit smoking in restaurants, bars, and private and government workplaces as of September 30, 2010 Enforcement of state smoking legislation is essential for effectiveness. 40 states (78.4%) specify an enforcement authority. Of those states 77% give authority to state or local departments of health or human services. Anecdotal evidence suggests that in some states, agencies are not enforcing the law.2 There is currently no comprehensive evaluation or analysis of enforcement of state-wide smoking prohibitions.

Enforcement as an Issue

Penalty Range for First Violations of Smoking Policies for Restaurant Patrons In this table, Arizona, Colorado, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Massachusetts, Montana, Nebraska, New Mexico, Ohio, Utah, Washington, and Wisconsin are 100% smoke-free in restaurants, bars, and private and public worksites. In addition, Florida, Idaho, Louisiana, Nevada, New Hampshire, South Dakota prohibit smoking in restaurants.

Penalty Range for First Violations of Smoking Policies for Restaurant Owners In this table all states except for California and Virginia prohibit smoking in 100% of restaurants.

Methods State smoke-free indoor air restrictions provisions and enforcement provisions were compiled from the National Cancer Institute’s State Cancer Legislative Database (SCLD), www.scld-nci.net 3 states were selected for case studies : New York Massachusetts Iowa States were selected because aggregated state enforcement data were available and easily located on their Web sites. State enforcement data were collected from each state enforcement agency Web site.

New York: State Legislation Prohibited smoking in restaurants, bars, and workplaces in 2003. Enforcement authority: local health department; may issue fine of up to $250 for first violation. Local health department gives state health department data for aggregation.

New York: Findings Enforcement against proprietor owners3 2,067 total violations reported to state agency from 2004-2009 147 were pending decision as of 2009; 365 were given no fine Maximum fine given was $1,400; average fine was $457 New York City accounted for 60% of enforcement reports Enforcement reports include repeat violations and fines

New York: Findings: Number of Enforcement Reports by Year3 Probably should have Indy make this one look nice.

Massachusetts: State Legislation Prohibited smoking in restaurants, bars, and workplaces in 2004. Enforcement authority: state Department of Public Health; may issue fine of up to $100 for first violation by proprietors. State Department of Public Health keeps enforcement data and has had independent evaluation done on the smoke-free indoor air law by School of Public Health at Harvard University.

Massachusetts: Findings The state’s own assessment of its smoke-free indoor air law was analyzed; no data on actual enforcement reports or violations were available. State’s own report and Harvard University School of Public Health assessment only followed one year after implementation of smoke-free indoor air law (from 2004-2005) Calls to Smoke-free Workplace law complaint and information line decreased from 742 in June 2004 to 29 in 2005. Complaints of violations were only 18% of calls. 4 State random inspections from 2004-2005 showed 91% compliance rate; resulting in 469 violations. In all but 39 cases, a warning was issued. 4 Air quality in restaurants and bars improved post-ban.5

Iowa: State Legislation Prohibited smoking in restaurants, bars, and workplaces in 2008. Enforcement authority: state Department of Public Health; may issue fine of up to $100 for first violation. State Department of Public Health has collected violation information, complaint calls information, and conducted an analysis of all the complaint and violation information.

Iowa: Findings The number of complaints of violations to state Department of Public Health drastically declined from 2009-2010.6 Of valid complaints, 40% were against bar/restaurant owners, followed by 28% against retail store/services. 6 Valid Complaints Recorded by Iowa Department of Public Health6

Iowa: Findings Notice of Potential Violation Letter (NOPV) by Fiscal Year6 State assessment does not include information on fines, only violation letters.

Discussion Evidence from all three states may indicate enforcement immediately following state-wide smoking bans consists of warnings, information to businesses, and letters. New York increased enforcement two years after implementation of state-wide smoking ban. By 2 years after ban, businesses have been warned and should know of legal implications of non compliance. Establishments may not comply because of loose enforcement immediately following ban. Massachusetts and Iowa evaluations may be premature. More data on fines necessary for complete comparative analysis. More longitudinal studies of enforcement are needed to assess the laws’ effectiveness.

Endnotes 1. U.S. Department of Health and Human Services. The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General. U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2006. 2. Quenqua, D. (2009, December 31). Blowing Smoke at a Ban. The New York Times. Retrieved from http://www.nytimes.com. 3. New York State Department of Health, Status of Enforcement Actions in Response to Non-compliance with the New York State Clean Indoor Air Act, March 31, 2009. Available at http://www.nyhealth.gov/prevention/tobacco_control/clean_indoor_air_act/enforcement.htm. 4. Massachusetts Tobacco Control Program. Massachusetts Department of Public Health. One-Year Review of the Massachusetts Smoke-Free Workplace Law. June 30, 2005. 5. Alpert, H., Carpenter, C., Travers, M., Connolly, G., Environmental and Economic Evaluation of the Massachusetts Smoke Free Workplace Law, Journal of Community Health. 2007. 6. Iowa Department of Public Health. Division of Tobacco Use Prevention & Control. Iowa Smokefree Air Act: Second Annual Compliance Report, September 2010. Available at http://www.iowasmokefreeair.gov/common/pdf/second_year_report.pdf.

State Cancer Legislative Database http://www.scld-nci.net Contact About SCLD: Regina el Arculli, M.A. Director, SCLD Program National Cancer Institute Office of Government and Congressional Relations Phone: 301.496.5217 Fax: 301.402.1225 Email: elarculli@nih.gov About this presentation: Ryan Patrick, J.D., or Shelby Eidson, J.D. Senior Legislative Analysts The MayaTech Corporation Center for Health Policy and Legislative Analysis Phone: 301.587.1600 Fax: 301.587.0709 Email: scld@mayatech.com

American Public Health Association Meet the Experts American Public Health Association Learn About NCI’s Research, Programs and Meet Our Experts Visit Booth # 1220 Sunday, Nov. 7  2:00 p.m. to 5:30 p.m. Monday, Nov. 8  9:30 a.m. to 5:30 p.m. Tuesday, Nov. 9  9:30 a.m. to 5:30 p.m. Wednesday, Nov. 10  8:30 a.m. to 12:30 p.m.