Oleh Viera Amelia Priyono
The Netherlands is one of member states of WHO Framework Convention on Tobacco Control (WHO FCTC). It signed the treaty on June 16, 2003 and consented to be bound by it with instrument of acceptance on January 27, 2005. The treaty itself then entered into force on April 27, 2005. The WHO FCTC provides an internationally co-ordinated response to combating the tobacco epidemic, and sets out specific steps for governments addressing tobacco use, including to:
• Adopt tax and price measures to reduce tobacco consumption;
• Ban tobacco advertising, promotion and sponsorship;
• Create smoke-free work and public spaces;
• Put prominent health warnings on tobacco packages; and
• Combat illicit trade in tobacco products.
In accordance with this treaty, the smoking ban introduced in the Netherlands on July 2008 initially included all cafes, hotels, and restaurants. But then in July 2010, the Minister of Health introduced a new decree that exempted small bars with an area of less than 70 square metres that had no employee from the smoke-free provision. In 2011, the same exemption applied to small cafes of the same size without staff. The Climate Action Network (CAN), a public health NGO, sued the government, claiming the exemption violated Art 8(2) of the WHO FCTC. The lower court found CAN’s arguments groundless and dismissed the case. But on March 26, the Court of Appeals of The Hague overturned the lower court’s judgment, invalidated the exemption, and ordered the government to enforce the law in full. The Court of Appeals found that that lower court erred when it considered the WHO FCTC as a whole, rather than just WHO FCTC Art 8(2). Without coming to any conclusion on the rest of the WHO FCTC, the Court of Appeals found that Art 8(2) was sufficiently clear and concrete to have a direct effect – both in terms of what is considered effective protection from tobacco smoke, and what is considered an indoor public place.
This case is the first time a court has cited the WHO FCTC as the primary legal justification for overturning a weak tobacco control law. There have also been several cases worldwide where courts have cited the WHO FCTC when upholding legislation, but this Netherlands case is momentous because it is the first to discuss a direct conflict between national law and the WHO FCTC, and hold that the article of the WHO FCTC takes precedence. This court decision is indeed a major step forward for tobacco control in the Netherlands and abroad, especially because of the prominence it gives to the WHO FCTC. On the other hand, much more work remains in order to increase compliance, denormalize smoking, and adopt other policy measures that are essential to decreasing smoking.