Implementation of smokefree legislation in England...• Using a waterpipe to smoke tobacco is not a...

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Implementation of smokefree legislation in England Supplementary guidance for local authority regulatory officers on dealing with non-compliance in shisha bars

Transcript of Implementation of smokefree legislation in England...• Using a waterpipe to smoke tobacco is not a...

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Implementation of smokefreelegislation in England

Supplementary guidance for local authority regulatoryofficers on dealing with non-compliance in shisha bars

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In offering and using this advice it must be clearlyunderstood that:

• legislation may change over time and the advice givenis based on the information available at the time theguidance was produced – it is not necessarilycomprehensive and is subject to revision in the lightof the further information;

• only the courts can interpret statutory legislation withany authority; and

• this advice is not intended to be definitive guidancenor a substitute for the relevant law and independentlegal advice should be sought where appropriate.

The term ‘shisha bar’ includes premises such aslounges and cafes where waterpipes are offered, withor without food and beverages, and which arecommonly known collectively as shisha bars.‘Waterpipe’ is a generic term to cover the smoking ofpipes including shisha, boory, goza, narghile, nargile,hookah and hubble bubble.

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Contents

Implementation of smokefree legislation in England – supplementary guidance 3

Introduction 4

1 Health hazards associated with the use of waterpipes 5

2 Compliance goals 6Compliance with smokefree legislationManagement of health and safety for staff and publicPrevention of underage purchase and use of tobaccoControlling advertising and promotion of tobacco productsand supply of illicit, incorrectly labelled and non duty-paid tobaccoEducation of staff/public about risks of health effects of using waterpipes

3 Enforcement issues 14Identifying premises permitting shisha smokingObtaining accessEstablishing ownership and identifying person in controlExpediting legal proceedingsSpecialist tobacconist – requirements for claiming exemptionUse of ‘smokeless’ waterpipes

4 Working with partner organisations 16

Appendix 1 The health hazards associated with the use of waterpipes 17

Appendix 2 Shisha tobacco products – a guide to the legislation 19Introduction Product labelling Tobacco advertising and promotion Under age salesTax and duty

Appendix 3 Example of shisha enforcement strategy, 23London Borough of Tower Hamlets

Appendix 4 Examples of public education leaflets 25

Appendix 5 Example of workshop to raise awareness of shisha use, 27Coventry City Council

Appendix 6 Requirements for specialist tobacconists 28

Appendix 7 Safety of electronic smoking devices 29

Appendix 8 Illustration of components of a shisha pipe 30

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This supplementary guidance has been developed byLocal Government Regulation (LGR, formerly knownas LACORS), the Chartered Institute of EnvironmentalHealth (CIEH) and the Trading Standards Institute(TSI). It is intended to be used in conjunction with theprevious guidance on implementation of smokefreelegislation published by LACORS: Implementation ofsmokefree legislation in England: Guidance for localcouncil regulatory officers – Second Edition, 2009 andImplementation of smokefree legislation in England:Guidance for local council regulatory officers –Associated Issues, 2007, the contents of both ofwhich are current.

The purpose of the supplementary guidance is tosupport council regulatory officers in continuing tosuccessfully implement the smokefree legislationwhich came into force in England on 1 July 2007.

Regulatory officers report that they are frequentlyencountering non-compliance by the operators ofshisha bars. It is reported that in some cases this maybe as a result of ignorance of the law or confusionabout the legal requirements, however in a numberof cases non-compliance has been observed to beintentional, deliberate and repeated. Thissupplementary guidance provides information tosupport effective investigation, inspection andenforcement measures. It also supports a consistentapproach to the application of the legislation so thatthe operators of businesses providing for shishasmoking will consider that they are being treatedfairly and both employees and members of the publicare properly protected.

There is an intention to amend and update thisguidance in the light of experience of implementationand the authors welcome both your comments andyour suggestions for further clarification and futureinclusions.

Sarah BullLocal Government [email protected]

Ian GrayChartered Institute of Environmental [email protected]

Jane MacGregorLocal Government [email protected]

Implementation of smokefree legislation in England – supplementary guidance 4

Introduction

It also supports a consistentapproach to the applicationof the legislation so that theoperators of businessesproviding for shisha smokingwill consider that they arebeing treated fairly and bothemployees and members ofthe public are properlyprotected

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Advice from the World Health Organization (WHO)states ‘using a waterpipe to smoke tobaccoposes a serious potential health hazard tosmokers and others exposed to the smokeemitted’, and ‘secondhand smoke fromwaterpipes is a mixture of tobacco smoke inaddition to smoke from the fuel, and thereforeposes a serious health risk for non-smokers’.The WHO therefore recommends ‘waterpipesshould be prohibited in public places consistentwith bans on cigarette and other forms oftobacco smoking’ (2005).

According to the WHO, the science base surroundingthe use of waterpipes supports the followingconclusions (2005):

• Using a waterpipe to smoke tobacco poses a seriouspotential health hazard to smokers and othersexposed to the smoke emitted.

• Using a waterpipe to smoke tobacco is not a safealternative to cigarette smoking.

• A typical one-hour long waterpipe smoking sessioninvolves inhaling 100-200 times the volume of smokeinhaled with a single cigarette.

• Even after it has been passed through water, thesmoke produced by a waterpipe contains high levelsof toxic compounds including carbon monoxide,heavy metals and cancer-causing chemicals.

• Commonly used heat sources that are applied to burnthe tobacco, such as wood cinders or charcoal, arelikely to increase the health risks because when suchfuels are combusted they produce their owntoxicants, including high levels of carbon monoxide,metals and cancer-causing chemicals.

• Pregnant women and the foetus are particularlyvulnerable when exposed either actively orinvoluntarily to the waterpipe smoke toxicants.

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1 Health hazards associatedwith the use of waterpipes

• Second-hand smoke from waterpipes is a mixture oftobacco smoke in addition to smoke from the fueland therefore poses a serious risk for non-smokers.

• There is no proof that any device or accessory canmake waterpipe smoking safer.

• Sharing a waterpipe mouthpiece poses a serious riskof transmission of communicable diseases, includingtuberculosis and hepatitis.

• Waterpipe tobacco is often sweetened and flavoured,making it very appealing; the sweet smell and taste ofthe smoke may explain why some people, particularlyyoung people who otherwise would not use tobacco,begin to use waterpipes.

Appendix 1 contains a summary provided by theChartered Institute of Environmental Health of theavailable scientific and medical evidence regarding theuse of waterpipes.

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The purpose of this supplementary guidance is tosupport local authority regulatory officers in securingcompliance with the smokefree legislation and inparticular to support effective investigation,inspection and enforcement measures. However, theactivities involved in the operation of shisha bars areadditionally regulated by a variety of tobacco controlmeasures, including those relating to productlabelling, tobacco advertising and promotion, underage sales and liability for payment of tax and duty.

It is also the case that where businesses choose tooperate outside of the law, as some shisha baroperators have, then other regulatory bodies andenforcement agencies may also need to be informedand involved in order that a comprehensive approachcan be taken to ensure that activities are in allimportant respects safe and legally compliant.

The experience of local authority officers has beenthat in order to secure proper control of shisha barswhich are intentionally, deliberately or repeatedly non-compliant it has been both appropriate and effectiveto consider such a comprehensive approach and toinvolve all those agencies with responsibilities in thisarea. It is also in the best interests of businessesthemselves that they be made comprehensively awareof their responsibilities and liabilities, ideally from theoutset. In most circumstances, it can then beanticipated that businesses will work willingly withlocal authority services and other regulators toachieve compliance with all relevant legalrequirements.

However, where such willingness is not demonstratedand non-compliance continues then it is suggestedthat comprehensive compliance goals are set and thatthe local authority engages with partner organisationsin order to develop and carry out coordinatedenforcement measures.

The compliance goals should include:

• compliance with smokefree legislation;

• management of health and safety for staff andpublic;

• prevention of underage purchase and use oftobacco;

• controlling advertising and promotion oftobacco products and supply of illicit,incorrectly labelled and non duty-paidtobacco; and

• education of staff/public about potential healtheffects of using waterpipes.

2 Compliance goals

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Compliance with smokefree legislation

Application of the smokefree legislation toshisha bars

Smokefree legislation in England came into effect on1 July 2007 and it has therefore been in place formore than three years. The Government has statedthat there is no intention to review the legislation atthe present time as it is seen to be serving itspurpose. The virtual absence to date of legalchallenges to the legislation is an indication that it isboth effective and accepted.

The inclusion of premises that serve shisha is inkeeping with the primary objective of the legislation,which is to reduce the risks to health from exposureto secondhand smoke in enclosed and substantiallyenclosed public places and workplaces. Organisationsrepresenting shisha bar operators were specificallyincluded in the consultation on the proposedlegislation which was considered carefully byParliament before it received Royal Assent. The factthat the new law would include the smoking ofshisha was debated specifically in the House of Lords(9 May 2006) and during this debate, the views ofshisha bar owners were specifically considered.

The smokefree legislation is intended to becomprehensive and to apply to virtually all enclosedworkplaces and public places in England. The effecton businesses that serve shisha is therefore notdisproportionate. Shisha can still be smoked in placesthat are not enclosed or substantially enclosed andthe effect is therefore no different to that oftraditional pubs, ‘Continental’ cafes, private membersclubs set up for the smoking of cigars and all otherhospitality premises.

There have not been any legal challenges to theinclusion of shisha smoking within the smokefreelegislation. However, an Appeal Tribunal was held todetermine a decision by the Commissioners for HerMajesty’s Revenue and Customs (HMRC) to classifytobacco mix used in waterpipes as liable for duty. The

Tribunal found that colloquially the use of the productis called ‘smoking’; that technically when used asintended it does produce smoke, and the user inhalesthis and is therefore properly to be said to besmoking. The appeal was dismissed (Appeal numberLON/2009/7071).

Requirements in the Health Act 2006

Under Section 1(2) of the Act, smokefree legislation inEngland applies to the smoking of tobacco oranything which contains tobacco, and being inpossession of lit tobacco or anything lit whichcontains tobacco, or being in possession of any otherlit substance in a form in which it can be smoked.This includes waterpipes.

The Act prohibits smoking in enclosed andsubstantially enclosed parts of virtually all premisesthat are open to the public or are used as aplace of work by more than one person. Thisclearly includes premises such as lounges and cafeswhere waterpipes are offered and which arecommonly known collectively as shisha bars.

The requirements for shisha bars are no different tothose for any other premises required by law to besmokefree and therefore the general advice containedin the Guidance for Regulatory Officers – SecondEdition (Section 7) issued by LACORS in 2009 applies.

Essentially waterpipes can only be smokedoutside in the open air, or where therequirements have been properly met for astructure to be non-substantially enclosed.

Local authority officers may therefore want to payparticular attention to the signage requirements toensure that the correct signage is properly displayedat every entrance to an enclosed or substantiallyenclosed part of the premises. Additional signagemight also be recommended to specifically prohibitstaff from lighting and extinguishing waterpipes inenclosed and substantially enclosed areas and todirect people smoking shisha pipes that they must

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not take them into enclosed and substantiallyenclosed areas.

It has been repeatedly observed by local authorityofficers that some shisha bar operators aredetermined to ‘push the limits’ of the termsubstantially enclosed. The previous guidance onimplementation of smokefree legislation published byLACORS contained the best available advice fordetermining the legality and suitability of substantiallyenclosed structures where smoking is permitted. Inthe absence of any case law it is not possible to addfurther to the advice already given. However, localauthority officers are encouraged to use acommonsense approach and recognise that it is amatter for the courts to determine the reasonablenessor otherwise of the requirements.

For example, where the open wall areas, included inthe calculations for a non-substantially enclosedstructure, are being obstructed either permanently orroutinely by furniture or in any other manner – thenat those times the structure may not comply and, ifso, smoking in it will constitute an offence for whichthe person in control and the customers themselvescan be liable. If the business operator has beenwarned of this eventuality and has not taken actionto prevent such an occurrence then a convictioncould result.

Similarly, where such a structure is constructed insuch a manner as to make it practically impossible tomake the necessary calculations, or the manner ofthe construction or the materials used cause thestructure to vary to such an extent as to makecalculations meaningless (as is the case where sometented constructions and awnings have been usedand plants and shrubs have been utilised to form‘walls’) then the local authority officer may be ableto justify reaching a conclusion that the requirementsfor ‘non-substantially enclosed’ are not met.

Inadequately ventilating non-substantiallyenclosed structures

Whether or not a structure in which shisha smoking ispermitted meets the criteria for substantially enclosed,its location, where this is in close proximity toadjacent structures, can mean that the naturalventilation of the structure may be impeded causingsmoke to build-up inside the structure.

The general duty of care under the Health and Safetyat Work etc Act 1974 applies in relation to theconstruction and use of smoking shelters. The sitingand construction of the shelter needs to be carriedout so as to ensure an adequate level of naturalventilation which will remove and help to prevent thebuild up of secondhand smoke. However, incircumstances where the shelter is sited orconstructed in a manner that secondhand smoke isnot effectively removed and does build up, then theemployer of staff who are expected to carry out workin the structure should be required to consider whatneeds to be done to minimise exposure of employeesto secondhand smoke or to mitigate its effects uponthe employee – for example:

• by limiting the number of people permitted to smokeat any one time; or

• by specifying periods during which smoking will notbe permitted in order to provide access for staff tocarry out essential activities.

Smoke infiltration

The location of a structure in which shisha smokingis permitted where this is in close proximity toadjacent structures can give rise to smoke from thestructure infiltrating into residential and orcommercial properties. Secondhand smoke emittedfrom premises in such a manner could be consideredto be prejudicial to health or a nuisance, as it hasbeen considered in relation to very frequentbarbeques at pubs.

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Odour and smoke nuisance can be dealt with by useof Sections 79-81 of the Environmental Protection Act1990. There is no fixed level which constitutes anuisance, and in order for an odour to be classed as astatutory nuisance, it must be seriously affecting anindividual’s use or enjoyment of their property. Toconstitute a nuisance the odour must occurcontinuously for a period of time and be a frequentproblem. It can therefore apply to smoking sheltersadjacent to neighbours’ dwellings or gardens.

Management of health and safety for staffand public

There are a number of health and safety concernsgenerally associated with non-substantially enclosedstructures provided for smoking, including:

• the use of ambient heating devices which areintrinsically unsafe, installed or located in an unsafemanner, and/or poorly secured;

• non-substantially enclosed structures erected toaccommodate smokers and where the publiccongregate, being located close to chemical and/orgas cylinder storage;

• the intrinsic safety of some structures erected toaccommodate smokers;

• floor construction materials and general state ofrepair may help facilitate slip, trip and fall accidents;

• safe access and egress to and from the smokingareas;

• poor lighting and/or outside areas becoming icy, wet,damp or covered in litter thereby increasing the risk ofslips, trips and falls; and

• unsafe electrical systems provided for outdoorstructures and heating equipment.

Identification of further health and safetyconcerns

In relation to the provision of shisha smoking inbusiness premises, a number of additional health andsafety concerns arise:

• the use of naked flames, gas rings and barbequeapparatus to ignite charcoal or wood cinders;

• means and methods of preparation, storage,extinguishing and disposal of lit smoking materials;

• arrangements for and location of initial lighting ofwaterpipes, when carried out by an employee, inorder to begin the smoking process for the customer,as well as periodically adjusting and refuelling of thesmoking materials;

• procedures for ‘blowing back’ of the waterpipe inorder to cool the apparatus and reduce the amountof smoke generation;

• accumulating amounts of smoke and carbonmonoxide generated from the burning charcoal, thesmouldering smoking materials and the secondhandsmoke from users of waterpipes; and

• the practice for a shisha pipe to be shared between anumber of people which raises the risk oftransmitting infectious diseases and conditionsthrough the sharing of mouthpieces. Such risks mayinclude tuberculosis and Hepatitis C, colds, flu, oralherpes, and mouth and gum disease.

Health and Safety at Work etc Act 1974

In order to properly determine the measures thatshould be required to be taken to manage such risks,the provisions of the Health and Safety at Work etcAct 1974, as amended, need to be considered.

Under Section 4 it is the duty of persons in control ofwork premises to ensure, so far as is reasonablypracticable, that the premises and any equipment or

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substance used there is safe and without risks tohealth.

In relation to businesses offering shisha smoking thisduty of care might include:

• making the workplace safe;

• preventing risks to health;

• ensuring that plant and machinery is safe to use, andthat safe working practices are set up and followed;

• telling the employee about any potential hazardsarising from the work they do, chemicals and othersubstances used, and giving the employeeinformation, instructions, training and supervisionas needed;

• checking that the right work equipment is providedand is properly used and regularly maintained;

• preventing or controlling exposure to substances thatmay damage health;

• taking precautions against the risks caused byflammable or explosive hazards; and

• providing health supervision as needed.

The Management of Health and Safety atWork Regulations 1999

These Regulations extend the implied dutiescontained within the Health and Safety at Work etcAct 1974 by requiring employers to make anassessment of the hazards within their workplace andmake arrangements for minimising the risk toemployees. The normal process of ‘risk assessment’needs to be applied taking into account the extent,nature and duration of exposure as well as any pre-existing health concerns of particular employees.

The risk assessment should include specificconsideration of:

• the extent to which staff working in shisha bars arebeing exposed to tobacco smoke in the course oftheir work and the possible effects on their health –exposure can arise both from the process of lightingthe waterpipes (priming) and also from breathing inthe secondhand smoke in the areas in which theshisha pipes are being smoked;

• safety issues concerned with the use of lit materials aswell as fire hazards that may arise, the means ofdetecting fires, the provision of fire fighting apparatusand means of escape; and

• arrangements for the shisha pipes and hoses to beproperly cleaned between each use and the provisionof disposable mouth pieces for use by staff andindividual customers.

Regulatory Reform (Fire Safety) Order 2005

This Order reformed the law relating to fire safety innon-domestic premises by replacing fire certificationunder the Fire Precautions Act 1971 with a generalduty to ensure, so far as is reasonably practicable, thesafety of employees and a general duty, in relation tonon-employees, to take such fire precautions as mayreasonably be required in the circumstances to ensurethat premises are safe and a duty to carry out a riskassessment.

Matters which may need to be addressed in the riskassessment include:

• non-substantially enclosed structures erected toaccommodate smokers (e.g. rooftop patios) nothaving and/or preventing the means of escape to thesafe assembly points located outside – structures thatprohibit or inhibit safe channelling to the assemblypoints would also be a cause for concern;

• illicit smoking in concealed places (improperlyextinguished smoking materials causing fires);

• the use of heating devices which are intrinsicallyunsafe, not properly maintained, incorrectly installed

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or located in an unsafe manner, and which presentfire safety and health and safety concerns; and

• LPG storage – apart from the fire risk they pose, LPGcylinders pose an asphyxiation risk; LPG vapour isdenser than air and must not therefore be stored incellars, basements or sunken locations.

Where any smoking related equipment, structure orprocedure is considered unsafe or unsatisfactory, it isthe remit of the Fire Authority to audit premises’ riskassessments to ensure that these do not compromisemeans of escape and general fire safety. Suitableenforcement will result where any such issues cannotbe resolved or effectively addressed through the FireRisk Assessment.

Regulatory officers who have concerns about thefire safety implications of issues arising from thesmokefree regulations should draw these to theattention of the duty holder, who is responsible forproducing a fire risk assessment and contact theFire Authority, but need to be aware that localauthorities have no enforcement powers on thisissue.

Prevention of underage purchase and useof tobacco

It is an offence to sell any tobacco product topersons under the age of 18 years and a statutorysign displaying the statement ‘It is illegal to selltobacco products to anyone under the ageof 18’ must be displayed at every premises at whichtobacco is sold by retail.

Details of the legal requirements and the enforcementmeasures are set out in Appendix 2.

Tobacco is a constituent of the majority of productssupplied for use in shisha establishments, or soldfrom their premises for personal use elsewhere andtherefore these businesses must comply with theserequirements.

Local authority officers have reported that peoplewho appear to be younger than the age of 18 yearsare frequently seen in shisha bars and that thestatutory signs are often not displayed.

Controlling advertising and promotion oftobacco products and supply of illicit,incorrectly labelled and non duty-paidtobacco

As previously stated, tobacco is a constituent of themajority of products supplied for use in shishaestablishments, or sold from their premises forpersonal use elsewhere. These products musttherefore comply with tobacco products legislationwhich includes the following requirements:

• product identification code-markings;

• specified health warnings and pictures; and

• prohibited product descriptions.

Currently, it is believed that only a smallproportion of waterpipe tobacco is legitimatelyimported and correctly marked. Where suchproducts do not comply then they cannot besold or supplied legally and are liable to seizureby the appropriate agencies.

Details of the legal requirements and the enforcementmeasures are set out in Appendix 2. This includesguidance on the application of these requirementswhere the shisha is sold ‘loose’ or made up to therequirements of the customer.

Liability for excise duty

Shisha materials containing tobacco are liable forexcise duty. Details of the legal requirements andthe enforcement measures are set out inAppendix 2.

Any product offered for sale with the appropriateduty unpaid may be subject to seizure and/or further

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action by HMRC. HMRC should be notified inaccordance with the established protocols.1

It is stated above that, currently, it is believed thatonly a small proportion of waterpipe tobacco islegitimately imported and correctly marked and thatwhere such products do not comply then they cannotbe sold or supplied legally and are liable to seizure bythe appropriate agencies.

Therefore to operate in full compliance with thelaw, businesses need to ensure that they canprovide evidence of the legitimacy of theirsupplies, or that they supply only tobacco-freeshisha mixtures on which duty is not requiredto be paid.

Education of staff/public about risks ofhealth effects of using waterpipes

In some communities in the UK, shisha smoking is anestablished communal activity where smoking takesplace at home amongst family members and friends.However, increasingly shisha smoking is beingprovided commercially in shisha bars either for thisspecific purpose or alongside other associated activitiesof eating, drinking and entertainment. In some cases itis perceived as a safe and alcohol-free environment inwhich to meet and socialise for people whose cultureor religion prohibits the use of alcohol.

It is reported that the increasing number of shishaestablishments are particularly attractive to someyoung people seeking a new social experience andthat advertising is being specifically directed towardsthem.

In Harrow the number of shisha bars is above theaverage for London boroughs. NHS Harrowcommissioned a scoping study2 to obtain a betterunderstanding of who uses shisha, their usage

patterns and their understanding of shisha. Themethodology was both quantitative and qualitativeand included a survey questionnaire promoted online,fieldwork at shisha bars/cafes in the borough andfacilitation of in-depth focus groups.

The findings of the survey indicate the following:

• the majority of shisha smokers smoke with friends,and their main reason is to socialise;

• the most common length of a shisha smoking sessionis two hours and some respondents smoke for threehours or more;

• 81 per cent usually smoke shisha at a bar or café andonly 17 per cent smoke at their own home or at afriend’s house;

• 37 per cent smoke shisha once/twice a week,followed by 25 per cent who smoke more than twicea week and 8.5 per cent who smoke shisha every day;

• 78 per cent of shisha smokers surveyed have notthought about quitting.

A particular concern which the survey highlighted isthe gap in the knowledge of many shisha users of thehealth implications of smoking shisha. Almost a thirdof those surveyed thought there are no health risksassociated with shisha smoking and nearly three-quarters thought cigarettes were more damaging tohealth. Indeed the general perception of therespondents was that smoking cigarettes is moredamaging to health than smoking shisha. The reasonsfor this may be related to respondents’ knowledgeand awareness of cigarette health warnings, and theabsence of these from many shisha products, and themistaken belief that nicotine and other chemicals arepresent in cigarette smoke but are not present inshisha smoke.

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1 HMRC and Trading Standards Joint Working Protocol Dealing with Tobacco Offenceshttp://www.lacors.gov.uk/lacors/ContentDetails.aspx?authCode=1F7257F&id=22140

2 NHS Harrow, Shisha, smoking and young people research, 2011

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It is known that there are many misconceptions aboutthe use of waterpipes as being less harmful thansmoking traditional rolled tobacco products, or eventhat it is harmless. Although not based on fact, thesemisconceptions are widely believed and may bestrongly defended. They include that shisha tobacco isless harmful than cigarette tobacco or that the waterin the pipe renders the smoke ‘safe’. In reality theshisha smoke contains carcinogens in similar levels toordinary tobacco smoke but, as a consequence of theway the tobacco is burnt, the level of carbonmonoxide is much higher. Carbon monoxide testingfor shisha users has been offered as a practicaldemonstration of the effects on the body and hasbeen known to persuade some shisha smokers tochange their consumption.

Assistance can be requested from the local NHS StopSmoking Services in informing smokers of hazards tohealth from smoking shisha and assisting them toquit smoking.

Some local authorities have implementedenforcement strategies which incorporate theprovision of information and advice to the public onthe health hazards associated with smoking shisha.Appendix 3 contains an example of a shishaenforcement strategy for the London Borough ofTower Hamlets Council, and Appendix 4 containsexamples of public information leaflets from bothLeicester City Council and Tower Hamlets. Other localauthorities such as Coventry City Council haveconducted workshops to raise awareness of shishause as described in Appendix 5.

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This supplementary guidance continues to promote asupportive approach to compliance where educationand support is offered to help individuals understandand abide by the law. However, in situations whereindividuals blatantly flout the law, then formalenforcement action by the local authority is entirelywarranted and necessary in order to promote aconsistent approach to maintain a level tradingenvironment. There have already been a number ofsuccessful enforcement actions brought against theoperators of premises where waterpipes have beenin use in contravention of the law over the pastthree years.

Identifying premises permitting shishasmoking

The majority of premises operating as shisha bars areopenly advertising in the usual manner of businesspremises in order to attract customers. However, anumber have been found to be operating withoutany apparent advertising or publicity, effectivelyunderground, in an attempt to avoid the attention ofthe local authority and other regulatory agencies.However, the existence of such premises will often beknown locally by word of mouth and reports ofcustomers may be found on the social networkingwebsites. Indeed some premises advertise theirexistence on social networking sites including detailsof their location, services, and opening times.

Obtaining access

Officers have reported that the entry arrangements atsome premises either seriously impede and delay, orare deliberately intended to prevent, local authorityofficers obtaining ready access. Such measures haveincluded totally obscured and locked entry doors,door staff who refuse admission, CCTV observation ofentry areas and approaches and entry phones withremotely controlled door locks.

Where entry has been prevented or the accessarrangements provide grounds for officers to believethat they may be impeded, a letter can be sent or

delivered to the owners/managers of the premisesinforming them that any unreasonable delay infacilitating entry upon request will be considered asobstruction and may result in prosecution. It followsthat where access is subsequently impeded then,whether or not prosecution in instituted, the lettercan be used to support subsequent entry by warrant.

In all cases where entry is repeatedly delayed ordenied then multiple prosecutions for the offence ofobstruction might be justified and can result insubstantial penalties.

Officers are reminded that their powers of entry forsecuring compliance with smokefree legislation arecomprehensive and any unreasonable delay inpermitting entry as well as any physical obstructioncan provide grounds for an application for a warrantfor entry, if need be by force and with policeassistance.

Establishing ownership and identifyingperson in control

It is vital for officers to establish the identity andpersonal details of the ‘person who controls or isconcerned in the management of the smoke-freepremises’. Failure to establish this may mean that itwill not be possible to institute subsequentproceedings effectively.

If necessary, information and intelligence gatheringabout the ownership and occupation of the premises,as well as the operation and management of thebusiness, should be undertaken in advance of aninspection. Obtaining details of the business ratepayermay be useful, however the persons paying thebusiness rates may not in fact be ‘controlling’ thebusiness. In premises which are licensed by the localauthority under the Licensing Act 2003, the DesignatedPremises Supervisor could be held to be in control.

Practical observations and questioning may help toidentify who holds the keys to secure the premises andwho has responsibility for the cash on the premises.

3 Enforcement issues

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Where an inspection has to be undertaken withoutclear information about the identity of the ownershipand management of the premises and business, andwhere it proves difficult to establish and confirm theidentity of the person in control at the time of theinspection, then consideration needs to be given torequesting police assistance. Where police are presentthey may also be requested to assist in establishingthe identity of any persons who are smoking incontravention of the smokefree legislation.

Expediting legal proceedings

In the knowledge that their officers may encounterproblems of access and identification of the person incontrol as described above, some local authoritieshave put arrangements in place to expedite as far aspossible the recording and reporting of offences forsubsequent legal process.

Use of injunctions

Injunctions have been granted where there have beenprosecutions previously taken for repeated offences.

Specialist tobacconist – requirements forclaiming exemption

There have been several attempts by operators ofshisha bars to claim the exemption permitted for‘specialist tobacconists’ which do not need to besmokefree for the time they are used for personssampling cigars and pipe tobacco.

The requirements for claiming the exemption as aspecialist tobacconist are very specific and this activityconstitutes an entirely different and separate tradingactivity from that associated with the operation of ashisha bar – which is essentially no different to any ofthe other business activities associated with the food,beverage and hospitality sector.

Appendix 6 contains an explanation of the standardsas they relate to shisha bars, and advice on particularpremises needs to be obtained from the local trading

standards service. To date, no shisha bar has beenidentified as a specialist tobacconist and it is consideredhighly unlikely that any will be able to do so.

Use of ‘smokeless’ waterpipes

A number of products are being promoted as‘smokeless’ waterpipes.

Some of these are entirely incorrect claims since themanufacturers have simply made adjustments to themethod of placing the burning charcoal above theshisha mixture. This has only a marginal effect on thesmouldering and production of smoke and clearly anysmoking apparatus which involves burning orsmouldering and generates smoke in any quantitycannot be considered as ‘smokeless’ and its use willcorrectly be included within the legal definition ofsmoking. In most cases a simple demonstration of theoperation of such apparatus will clarify the position.

Other manufacturers have entirely replaced the shishamixture with a capsule which may or may not containnicotine or other chemicals obtained from orassociated with tobacco, and which operates in asimilar manner to the ‘electronic cigarette’. In thecase of these ‘electronic shisha’ products no ignitiontakes place, only an arrangement for heating usingbatteries or a mains electricity supply connection inorder to vaporise the contents of the capsule. In thesecircumstances, under normal operation, smoke willnot be generated and the claim that the apparatus,when operated correctly, is smokeless may bejustified. In those circumstances their use would notbe prohibited under the smokefree legislation.

However, there are serious concerns reported aboutthe safety of all electronic smoking devices, somedetails of which are provided in Appendix 7.

Where officers become aware that electronic shishaapparatus is being used or promoted and they needto seek advice, they are advised to take details of thetype of device and contact the Home Authority forthe manufacturer/importer.

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Fire Service

The arrangements for fire prevention, fire fighting andevacuation.

Revenue and Customs/UKBA

Local inland detection teams of HMRC may be able toseize products on which duty has not been paid, ascan Trading Standards Officers. Details may be foundin the protocol of joint working arrangement.

Education Welfare and Child Protection

Where it is suspected that underage and truantschool age children are visiting shisha bars, or thatyoung people are inappropriately beingaccommodated in shisha bars and may be placingthemselves at risk, then contact should be made withEducational Welfare Officers and Child ProtectionOfficers.

The variety of regulatory concerns that have beenraised in relation to the operation of shisha barsmeans that consideration needs to be given toinvolving and working with a variety of regulatoryofficers and organisations.

In addition, officers may be willing to provideinformation and evidence following their own visitsfor other purposes, especially when they are madeaware that a simple statement from them may be allthat is needed for an offence to be investigated andenforcement action taken.

Trading Standards Service

The relevant regulatory activities carried out byTrading Standards Officers are set out in Appendix 2.

Environmental Health Service

Officers from the food safety team and the healthand safety teams and also officers responsible fornoise and pollution control measures where thesemay be concerns.

Building Control and Planning Officers

The construction and use of the premises and anyexternal structures erected to accommodate shishasmoking.

Police Service

The assistance of police officers can be invaluable andeven essential at times. They may attend with headcameras to assist with confirming identification andrecording evidence.

Licensing Service

Licensing is required for a variety of activities whichmay be taking place at premises which are alsoserving shisha e.g. sale of alcohol, entertainment (livemusic, dancing etc), late night refreshment,gambling, etc.

4 Working with partner organisations

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Statement from the Chartered Institute ofEnvironmental Health

The following is based upon careful consideration ofthe available scientific and medical evidence regardingthe use of waterpipes. According to World HealthOrganization (WHO) advice, ‘using a waterpipe tosmoke tobacco poses a serious potential healthhazard to smokers and others exposed to thesmoke emitted’, and ‘secondhand smoke fromwaterpipes is a mixture of tobacco smoke inaddition to smoke from the fuel, and thereforeposes a serious health risk for non-smokers’.The WHO therefore recommends ‘waterpipesshould be prohibited in public places consistentwith bans on cigarette and other forms oftobacco smoking’ (2005).

Researchers suggest that smoke from waterpipes‘likely contains an abundance of several of thechemicals thought to be causal factors in theelevated incidence of cancer, cardiovasculardisease and addition in cigarette smokers’(Shihadeh and Saleh 2004) and that ‘existingevidence on waterpipe smoking shows that itcarries many of the same health risks and hasbeen linked to many of the same diseasescaused by cigarette smoking’ (American LungAssociation 2007).

Waterpipe use may increase exposure to carcinogensby smokers and those exposed to secondhand smokefrom waterpipe smoking because smokers use awaterpipe over a much longer period, often 40 to 45minutes, rather than the five to 10 minutes it takes tosmoke a cigarette. Due to the longer, more sustainedperiod of inhalation and exposure, a waterpipesmoker may inhale as much smoke as consuming100 or more cigarettes during a single session(WHO 2005).

Other research highlights the hazards associated withexposure to the secondhand smoke produced bywaterpipe smoking. A study by Maziak et al suggeststhat the health effects of exposure to secondhand

smoke from waterpipes are ‘likely to include manyof those that result from exposure to cigarettesmoke’, and that the ‘higher content of heavymetals in waterpipe smoke compared tocigarettes may also have adverse health effectson exposed non-smokers’ (2004). Research byNuwayhid et al found that people exposed tosecondhand smoke from waterpipe smoking are atrisk for the same kinds of diseases as are caused bycigarette smoking, including cancer, heart disease,respiratory disease and adverse effects duringpregnancy (1998).

An additional factor to the secondhand smoke hazardcreated by the smoking of waterpipes is thatcommonly used heat sources that are applied to burntobacco, such as wood cinders or charcoal, are likelyto add to the toxic smoke from waterpipe usebecause when burned on their own these heatsources release high levels of potentially dangerouschemicals, including carbon monoxide and heavymetals (American Lung Association 2007). Carbonmonoxide is considered to be a major causativeagent in cardiovascular disease (Shihadeh andSaleh 2004).

Research also points to misconceptions regardingthe health impact of the use of waterpipes.According to Knishkowy and Amitai, despite theevidence that waterpipe smoking has health risks atleast similar to cigarette smoking, the generalperception is exactly the opposite. Waterpipe tobaccosmokers generally believe that it is less harmful thancigarette smoking (2005). There is also amisconception that waterpipes are less harmfulbecause smoke passes through water within the pipe.Research published by Hadidi and Mohammed in theSaudi Medical Journal found that ‘the inability ofwater to trap significant amounts of chemicalsubstances present in tobacco and the dangerwhich might result from the combustion ofadditives like glycerin, honey and other flavourscould be a very important factor to extrapolatethe damage resulting from hubble-bubblesmoking’ (2004).

Appendix 1 The health hazardsassociated with the use of waterpipes

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References

American Lung Association (2007). An EmergingDeadly Trend: Waterpipe Tobacco Use, ALA, NewYork.

Hadidi, K. and Mohammed, F. (2004). ‘Nicotinecontent in tobacco used in Hubblebubble smoking’ inSaudi Medical Journal, 25(7), 912-917.

Knishkowy, B. and Amitai, Y. (2005). ‘Waterpipe(narghile) smoking: An emerging health risk behavior’in Pediatrics, 116(1), 113-119.

Maziak, W., Ward, K., Afifi Soweid, R. and Eissenberg,T. (2004). ‘Tobacco smoking using a waterpipe: are-emerging strain in a global epidemic’ in TobaccoControl, 13(2004), 327-333.

Nuwayhid, I., Yamout, B., Azar, G. and Al KouatlyKambris, M. (1998). ‘Narghile (Hubble-Bubble)Smoking, Low Birth Weight, and Other PregnancyOutcomes’ in American Journal of Epidemiology,148(4), 375-383.

Shihadeh, A. and Saleh, R. (2004). ‘Polycyclicaromatic hydrocarbons, carbon monoxide, “tar”, andnicotine in the mainstream smoke aerosol of thenarghile waterpipe’ in Food and Chemical Toxicology,43(2005), 655-661.

World Health Organization (2005). WaterpipeTobacco Smoke: Health effects, research needsand recommended actions by regulators. WHO,Geneva.

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Introduction

At the commencement of any investigation or theoffer of advice involving a shisha tobacco product, itis vital that the product is correctly identified as thiswill determine which regulations apply.

The Niche Tobacco Product Directory3 will assist inindentifying the more common brands of shishatobacco. It is important to recognise that shisha is asmoked product. In the majority of cases, the productas supplied will contain (amongst other things)tobacco; however it is known that there are alsovarieties of herbal shisha available that do not containtobacco. In order to determine whether a specificproduct contains tobacco (and thus falls within thedefinition of a ‘tobacco product’) it may be necessaryfor it to be tested by an accredited test facility toconfirm the presence of tobacco.

Once established as a tobacco containing product,the relevant aspects of existing tobacco controllegislation will apply in a broadly similar way as thelegislation applies to familiar tobacco products suchas cigarettes.

Product labelling etc

Primary legislationConsumer Protection Act 1987 (CPA)4

Secondary legislationThe Tobacco Products (Manufacture, Presentation andSale) (Safety) Regulations 20025

The Tobacco Products (Manufacture, Presentation andSale) (Safety) Amendment Regulations 20076

GuidanceLACORS guidance on picture warnings for tobaccoproducts7

Definitions

Tobacco product means: a product consisting whollyor partly of tobacco whether genetically modified ornot and intended to be smoked, sniffed, sucked orchewed.

This means that shisha products are included in thisdefinition alongside cigarettes, cigars, pipe tobaccoand smokeless tobacco products.

Warnings on shisha products

Packets of shisha should carry on 30 per cent of themost visible surface (the front) one of the followingtwo statements:

• ‘Smoking kills’; or

• ‘Smoking seriously harms you and others around you’.

In addition to one of these two statements, one ofthe 14 picture warnings contained in the amendedregulations of 2007 must be given on the other most

Appendix 2 Shisha tobacco products –a guide to the legislation

3 www.ntpd.lacors.gov.uk4 Consumer Protection Act 1987 (CPA) www.legislation.gov.uk/ukpga/1987/435 The Tobacco Products (Manufacture, Presentation and Sale) (Safety) Regulations 2002

www.legislation.gov.uk/uksi/2002/3041/contents/made6 The Tobacco Products (Manufacture, Presentation and Sale) (Safety) Amendment Regulations 2007

http://www.legislation.gov.uk/uksi/2007/2473/contents/made7 LG Regulation guidance on picture warnings for tobacco products

http://www.lacors.gov.uk/lacors/ContentDetails.aspx?authCode=5D7CFAD&id=20120

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visible surface. This is the same requirement that isplaced for example on the manufacturers ofcigarettes.

Product identification markings

A manufacturer or UK importer of shisha products forsupply must ensure that the packaging carries code-marking whereby the place date and time ofmanufacture of the product can be determined andshall provide to the Secretary of State for Health a listof those code markings if required.

Product descriptions

Shisha products must not be supplied with any name,brand name, text trademark, picture or any otherrepresentation that the particular product is lessharmful to health than any other tobacco product.

An example would be the use of the term ‘light’ or‘mild’ previously associated with certain cigarettebrands; this was prohibited by this regulation as theinference was that such products were less harmful tohealth than other products.

Loose sales of shisha

Shisha may be available to consumers ‘in a non pre-packed form’, normally made to the requirements ofthe user prior to use for example at a shisha lounge,cafe or bar. The various ingredients that make up theshisha are likely to have been removed from theiroriginal containers and decanted into otherreceptacles for example the bowl of a shisha pipe;this presents a challenge when considering therequirements for warnings to be given to thepurchaser.

The shisha is ultimately supplied to the customerusually in a bowl of a shisha pipe which arguablybecomes a ‘packet’ within which it is presented forretail supply. The definition within the regulations fora packet is given as:

‘“Packet”, in relation to a tobacco product,means any box, package, container, wrappingor other receptacle which contains the product,and in which the product is, or is intended tobe, presented for retail supply.’

From a practical perspective, it is unlikely that supplierof the shisha will comply with the labellingrequirement of the bowl as a packet. This couldhowever be readily overcome with the provision of anotice to the consumer at the time of the supply ofthe shisha giving the appropriate warnings asoutlined above.

Provision of other information

Manufacturers or UK importers of a shisha productmust provide before 1 October in each year, to theSecretary of State (for each tobacco product theyproduce by brand name) a list of all ingredients byquantity, their function and toxicological data inisolation and in combination with all the otheringredients. This should refer to their effects onhealth and any addictive effects and should beprovided annually.

This requirement can only be met by providinganalytical data from a recognised and accreditedsource. Enforcement agencies are advised to consultwith the Department of Health regarding theprovision of this information by the importer orsupplier of any shisha product.

Offences and actions

Shisha products that do not carry the correct warningsecurely affixed, or that are not correctly code-markedbreach the provisions of these regulations.Enforcement action may be taken under theConsumer Protection Act 1987; see Part IV of the Act.

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Tobacco advertising and point of salerequirements

Primary legislationTobacco Advertising and Promotion Act 20028

Secondary legislationTobacco Advertising and Promotion (Point of Sale)Regulations 20049

GuidanceLACORS guidance on Point of Sale Advertising10

The advertising of tobacco products is restricted to asingle A5 size sign at the point of sale. It does notmatter how many different brands of tobaccoproduct are available for sale, only one A5 sign ispermitted. Whilst it might be unusual to seeadvertisements for shisha products, it is worth notingthat the restrictions placed on tobacco advertisingand the possible future restrictions on the display oftobacco products apply equally to shisha products.

The permitted advert must be two-dimensional andmay be one single advert or several, provided that thetotal area does not exceed A5 in size and can includethe name, emblem or any other feature of thetobacco product, the price and size of a packet. Theadvert must include the warning:

• ‘Smoking kills’ or ‘Smoking seriously harms youand others around you’; and

• ‘NHS Smoking Helpline 0800 1690169’.

Posters in shop windows, sandwich boards outsidepremises, awnings that carry a shisha brand or logothat advertise tobacco products are all prohibited.

Underage sales

Primary legislationChildren and Young Persons Act 1933 (as amended)11

Children and Young Persons (Protection fromTobacco) Act 1991 (as amended)12

Criminal Justice and Immigration Act 200813

Secondary legislationProtection from Tobacco (Display of WarningStatements) Regulations 199214

GuidanceLACORS guidance on enhanced retailer sanctions15

Selling to a young person

It is an offence to sell any tobacco product –including shisha products – to persons under the ageof 18 years. It is a defence for a person charged withthe offence to prove that they took all reasonableprecautions and exercised all due diligence to avoidthe commission of the offence.

Selling a shisha product to an underage personcarries a maximum penalty of £2,500.

Note: The definition of tobacco product for thepurposes of the 1933 Act includes: any productcontaining tobacco and intended for oral or nasal useand smoking mixtures intended as a substitute fortobacco, and the expression ‘cigarettes’ includes cuttobacco rolled up in paper, tobacco leaf, or othermaterial in such form as to be capable of immediateuse for smoking.

Further penalties which could impact on non-compliant businesses have been added under

8 Tobacco Advertising and Promotion Act 2002 www.legislation.gov.uk/ukpga/2002/36/contents9 Tobacco Advertising and Promotion (Point of Sale) Regulations 2004 www.opsi.gov.uk/si/si2004/uksi_20040765_en.pdf10 LG Regulation guidance on point of sale advertising

http://www.lacors.gov.uk/lacors/ContentDetails.aspx?authCode=5D7CFAD&id=5508 11 Children and Young Persons Act 1933 (as amended) www.legislation.gov.uk/ukpga/Geo5/23-24/1212 Children and Young Persons (Protection from Tobacco) Act 1991 (as amended) www.legislation.gov.uk/ukpga/1991/23/contents13 Criminal Justice and Immigration Act 2008 www.legislation.gov.uk/ukpga/2008/4/contents#pt11-pb314 Protection from Tobacco (Display of Warning Statements) Regulations 1992 www.legislation.gov.uk/uksi/1992/3228/contents/made15 LG Regulation guidance on enhanced retailer sanctions

http://www.lacors.gov.uk/lacors/ContentDetails.aspx?authCode=5D7CFAD&id=21025

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Section 143 of the Criminal Justice and ImmigrationAct 2008. Evidence of three illegal sales made withina two year period, one of which results in aprosecution permits the local council to make anapplication to the magistrates’ court for restrictedpremises and/or restricted sales order. The effect ofthese orders is to:

• prohibit premises from selling any tobacco productsand cigarette papers for up to 12 months (RestrictedPremises Order); and

• prevent named persons from being involved inbusinesses selling tobacco and cigarette papers for upto 12 months from any location (Restricted SaleOrder).

Statutory notice

An A3 size notice with characters of at least 36mmhigh displaying the following statement ‘It is illegalto sell tobacco products to anyone under theage of 18’ must be displayed at every premise atwhich tobacco is sold by retail. Ideally this notice willbe displayed in close proximity to the tobaccoproducts themselves.

Tax and duty

Primary legislationTobacco Products Duty Act 197916

GuidanceHMRC guidance on niche tobacco products17

Shisha is liable for excise duty and is classified in theIntegrated UK Tariff under 2403101000 where theexcise duty is £79.26 per kilo (correct as of 24 March2010) regardless of the proportion of tobacco in thecontent and import duty of 74.9 per cent on theCarriage Insurance and Freight value.

Purely to cover excise duty, correctly declared shishaproduct must as a minimum therefore cost theamounts listed below:

50gm pack £3.96100gm pack £7.92150gm pack £11.88 175gm pack £13.47250gm pack £19.81500gm pack £39.631kg pack £79.26

It is likely that any product available for less than thisamount has not been correctly declared, with theappropriate duty being unpaid. The product may besubject to seizure and/or further action by HMRC. HMRCshould be notified in accordance with existing protocols.

Currently it is believed that only a smallproportion of waterpipe tobacco (shish) islegitimately imported and correctly marked.Therefore to operate in full compliance with thelaw businesses need to ensure that they canprovide evidence of the legitimacy of theirsupplies, or that they supply only tobacco-freeshisha mixtures on which duty is not requiredto be paid.

16 Tobacco Products Duty Act 1979 www.legislation.gov.uk/ukpga/1979/717 HMRC guidance on tax and duty for niche products http://customs.hmrc.gov.uk/channelsPortalWebApp/channels

PortalWebApp.portal?_nfpb=true&_pageLabel=pageExcise_ShowContent&id=HMCE_CL_000268&propertyType=document

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Appendix 3 Example of shisha enforcementstrategy, London Borough of Tower Hamlets

The high prevalence of tobacco use in Tower Hamletshas been identified as a public health issue to bejointly dealt with in partnership through the over-arching agenda of the Tobacco Control Strategy forTower Hamlets and its Tobacco Control Alliance.

A shisha information leaflet was produced with thePCT for use in the shisha awareness campaign thathas been running since September 2009. All officersof the Environmental Health Commercial Services(EHCS) team are engaged in distributing these leafletsto businesses during their visits. This is contributinggreatly to an increased awareness of the health andlegal implications of shisha use in Tower Hamlets.

Enforcement of smokefree compliance on shishapremises in Tower Hamlets is approached as a healthand wellbeing objective.

The shisha campaign was initiated in the first quarterof 2009 to formally deal with shisha use in theborough as part of the joint Council/PCT TobaccoControl Strategy 2008/2011 by the Tobacco ControlAlliance for the London Borough of Tower Hamlets.

The shisha campaign includes planned enforcementvisits to premises suspected of selling shisha and islead by the Smokefree Team.

The Smokefree Team under Environmental HealthCommercial Services is funded by the PCT to carry outthe enforcement of the smokefree legislation andpromote the health and well being agenda. TheSmokefree team is therefore involved in the dual roleof enforcement and public health including aspects ofhealth promotion, and interventions.

The shisha campaign visits are planned based onaccurate intelligence confirming the existence ofpremises operating shisha lounges. The database isregularly updated and night visits are carried out onsuspected active premises. Prior to identifying a shishapremises a visit is carried out to the premises toconfirm if shisha is being smoked there and if theplace used is deemed enclosed or substantially

enclosed and should therefore be smokefree. If this isconfirmed, a written warning is sent to the owners ofthe business reminding them it is prohibited to smokeor allow smoking to take place in a smokefree place.The instruction is for such activities to ceaseimmediately.

The business is then put on the shisha database to bevisited and if a visit is carried out and it is still notcompliant the owners of the business will beprosecuted. The details of individuals smoking atshisha premises during a shisha initiative visit are senta written warning for the offence of smoking in asmokefree place. This has had a remarkable impact inthe community by widening the scope of thecampaign to the parents and guardians of thoseengaged in the use of the product who are mostlyyoung people.

The visits are carried out with Trading Standards andthe Police Joint Enforcement Team [JET] as well asother regulatory officers of the Council from Planning,Noise, Food, Community Safety, Licensing and Health& Safety as well as the Fire Brigade. A visit isscheduled every two weeks and usually from 7pmwhen these premises operate. The challenge remainsthe ease of change of use of premises from what itsinitial permit allows into a shisha place or adding ashisha place to an existing business. To deal with thisa joint enforcement approach is applied. Though thecampaign is led by Smokefree officers, each premisesvisited is collectively enforced simultaneously.

During the visits, compliance with the Health Act2006 is enforced by the Smokefree officers primarilyto determine if smoking of shisha was taking place inan enclosed or substantially enclosed place. This visitis usually after a written warning has been sent to theperson responsible for the premises. Any area of non-compliance particularly in regards to failure to preventsmoking in a smokefree place will result in aprosecution. Anyone smoking is issued a writtenwarning, the focus being to maintain the preventionof exposure to second hand smoke by ensuringsmoking does not take place in smokefree premises.

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Trading Standards enforce the Consumer ProtectionAct 1987 with regard to the products at thepremises. Tobacco products which are not compliantwith requirements for products sold in the UK arealso seized. The planning team have taken an activerole in ensuring that changes to use of premises arecompliant wherever applicable and the Fire Brigadehave in some instances reviewed the fire riskassessment report of premises due to change of use.

This campaign started in 2009 when the registry ofknown shisha places contained 32 premises. As atAugust 2010 this had been reduced to six premises.Over 80 per cent of the premises had stoppedproviding shisha and the remaining 20 per cent hadpending enforcement actions including prosecutions.A steady, consistent smokefree enforcementcampaign in combination with other enforcementagencies has been a contributory reason for theeffectiveness of the campaign and the impactcreated. Potential shisha operators have moved outof the borough. Tower Hamlets officers havesupported other boroughs that sought their helpin this area.

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Appendix 4 Examples of public education leaflets

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Campaigners highlight the dangers ofsmoking shisha

Health experts, smokefree campaigners and partnersfrom a wide range of public sector organisations inCoventry held a workshop to highlight the risksassociated with shisha.

The workshop came amid concerns that local peopleare unaware that smoking shisha is as harmful assmoking cigarettes.

Shisha is predominantly a fruit-scented tobacco whichis smoked through an ornate waterpipe, also knownas ‘hookah’ or ‘hubble bubble’. Shisha bars – whichare typically decked out with low stools and softcushions to create an inviting atmosphere –originated in the Middle East but are now becomingincreasingly popular across the UK.

Evidence has shown that a tyical hour-long shishasession involves inhaling 100 to 200 times the volumeof smoke inhaled when smoking a cigarette.Furthermore, because shisha nearly always containstobacco, those who use it are increasing their chancesof developing life threatening conditions such asheart disease, lung cancer and strokes.

Even smoking ‘tobacco free’ shisha is not safe becauseusers are still at risk from breathing in dangerous levelsof carbon monoxide as well as passing on infectionsthrough the use of shared mouthpieces.

Shisha smoking also falls within the smokefree lawand no bar or restaurant in the city should beallowing it to be smoked within an enclosed publicplace.

Hilary Waring, from the Tobacco ControlCollaborating Centre, who led the workship said:“Shisha smoking is on the rise right across thecountry and many people are totally unaware ofthe risks.

“The bubbling water does not filter out the toxins; itis not a safer alternative to smoking; it can lead to anicotine addiction and it can cause serious harm toyour health.”

Cllr Joe Clifford, Chair of Coventry’s SmokefreeAlliance, added: “While most people understand thedangers associated with smoking cigarettes, manylocal residents are not aware of harm linked toshisha.

“The Smokefree Alliance is determined to tackle thisissue and we will be working closely with a variety ofpartners across the city to develop a high profileawareness campaign.”

Anyone wanting free support to quit smoking can call0800 051 1310 or visit www.coventry.nhs.uk

Stop smoking support services across Coventry formpart of the Coventry Health Improvement Programme(CHIP) – a partnership programme between NHSCoventry and Coventry City Council to improvehealth, and reduce the health inequalities acrossCoventry. To find out more about CHIP visitwww.coventry.gov.uk

Source Insight: Coventry CityCouncil’s Magazine for employees

Appendix 5 Example of workshop to raiseawareness of shisha use, Coventry City Council

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Businesses should be warned against thinking thatpremises used for smoking shisha could be consideredappropriate for designation as a specialisttobacconist.

No shisha smoking premises have been recognised asspecialist tobacconists because the activity of smokingshisha is entirely different from the practice ofsampling cigar or conventional pipe tobacco.Sampling of a small quantity of a tobacco product isnot the same as sitting in a shisha bar and spending15 or more minutes smoking shisha.

Specialist tobacconists are defined in Section 6(2)of the Tobacco Advertising and Promotion Act 2003.They are shops. These shops are small in numberand are businesses where over half their sales comefrom cigars, pipe tobacco and related specialisttobacconists materials.

The Smokefree (Exemptions and Vehicles)Regulations 2007 set out that the shop of aspecialist tobacconist (that meets the requirementsof the Tobacco Advertising and Promotion Act)is exempt from smokefree legislation during thetime people are sampling cigars or pipe tobacco(including waterpipe tobacco), provided that it alsomeets the conditions required within Regulation 7of the Smokefree (Exemptions and Vehicles)Regulations 2007.

The exemption is only for the sampling of cigarsand pipe tobacco and not for cigarettes or rolledtobacco. The exemption does not allow for a shishabar to be declared a specialist tobacconist. Shishabars provide for the smoking (consumption) of shishathey are not in the business of testing or sampling ofa small token example of the product.

‘Sampling’ is defined in dictionaries as ‘taking asmall separated part of something illustratingthe qualities of the mass’. Time-wise, sampling isalso generally understood as a brief activity, not anextended trial over a period of time. It follows that acustomer spending a lengthy period of time smoking

shisha mean that they are actually ‘consuming’ theproduct.

See also Implementation of smokefree legislation inEngland: Guidance for council regulatory officers –Second Edition, Appendix 4, issued by LACORS in2009.

Appendix 6 Requirements forspecialist tobacconists

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Local Government Regulation (LGR), the CharteredInstitute of Environmental Health (CIEH) and theTrading Standards Institute (TSI) have previously maderepresentations to the Government and warned thepublic that they are using electronic cigarettes at theirown risk, because there are currently no standards forthese products and their effect on health is unknown.The same advice will apply in relation to shisha pipeswhich operate similarly. These electronic smokingdevices use replaceable cartridges which releasenicotine, but there are no specific standards for theseproducts or for the chemicals they release, whereasthe approved nicotine replacement products providedby doctors and pharmacists, such as gums and nosesprays, have been tested through clinical trials.

There is also concern that the public may be misledby claims that electronic smoking devices are‘healthier’ than normal cigarettes, or that they havetherapeutic properties and can help people to give-upsmoking. The law requires that any such health claimshave to be substantiated through rigorous testing andexamination. A medicinal product (medicine) isbroadly speaking a substance that either claims to, orhas the actual function of, treating or preventingdisease in human beings or animals. Furtherinformation on the definition of a medicinal productis available in MHRA Guidance Note No. 8 (A Guideto what is a Medicinal Product).

Legal position

The General Product Safety Regulations 2005 containthe general duty placed on producers and distributorsto place on the market only products that are safe innormal or reasonably foreseeable use. These areprincipally enforced by local authorities.

The Trade Descriptions Act 1968 and supportingRegulations, in particular the Control of MisleadingAdvertisements Regulations 1988, regulate consumeradvertising generally, including the advertising ofmedicines. This legislation is administered by theOffice of Fair Trading and the Advertising StandardsAuthority.

Appendix 7 Safety of electronic smoking devices

The Medicines and Healthcare Products RegulatoryAgency (MHRA) is the government agency responsiblefor ensuring that medicines and medical deviceswork, and are acceptably safe. The MHRA has carriedout a consultation on proposals for the regulation ofNicotine Containing Products (NCPs) which wouldbring all NCPs – with the exception of tobacco andtobacco products – within the medicines licensingregime. This would require all currently unlicensedNCPs on the market, such as electronic cigarettescontaining nicotine and nicotine gels, to apply to theMHRA for a Medicines Marketing Authorisation.Submissions on behalf of LGR, CIEH and TSI havebeen submitted and the proposals from the MHRAare awaited.

Where officers become aware that electronic shishaapparatus is being used or promoted and they needto seek advice, they are advised to take details of thetype of device and contact the Home Authority forthe manufacturer/importer.

Implementation of smokefree legislation in England – supplementary guidance 29

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Appendix 8 Illustration ofcomponents of a shisha pipe

Tobacco bowl

Bowl grommet

Pipe tray

Pipe stem

Air valve and ball bearing

Base seal

Base bottle (vase)

Hose grommet

Hookah hose

Implementation of smokefree legislation in England – supplementary guidance 30

Page 31: Implementation of smokefree legislation in England...• Using a waterpipe to smoke tobacco is not a safe alternative to cigarette smoking. • A typical one-hour long waterpipe smoking
Page 32: Implementation of smokefree legislation in England...• Using a waterpipe to smoke tobacco is not a safe alternative to cigarette smoking. • A typical one-hour long waterpipe smoking

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