Smoking bans in Germany – unconstitutional!

A few hours ago, the Federal Constitutional Court in Karlsruhe declared the smoking ban laws of two German states unconstitutional. Single-room pubs with less than 75 sqm that serve no food and aren’t accessible for people under 18 are now provisionally allowed to permit smoking .This decision indirectly applies to at least 12 of the 14 other German states.
Provisionally - because the states have to make constitutionally correct laws by the end of 2009.

Three owners of small bars in Baden-Württemberg and Berlin had called for judicial review. The court ruled that their entrepreneurial freedom is overly restricted by the smoking bans in the hospitality sector as long as bigger venues with several rooms may designate smokers areas. Hence, the court’s main legal argument is leveling the playing field.

The court offers two options:
1) A total ban without any smokers areas and separated rooms in bars and restaurants.
2) Exemptions for small single-room venues in addition to the possibility of separating rooms.
Option 1) is no solution as it would worsen the situation.

Unfortunately, the court echoes the passive smoking fraud. And only one (possibly two) of the eight judges thinks that a total smoking ban in the hospitality sector would be unconstitutional.

More information to follow.

Austria: Smoking ban regardless

On July 9, the Austrian Parliament has passed a tightened version of the national Tobacco Law, which - amongst other things - regulates smoking in the hospitality industry.
From January 2009 on, there will be a general smoking ban in bars and restaurants. This smoking ban is eased by a number of exceptions and leaves the innkeepers a certain freedom to choose.

Bars and restaurants over 80 square meters have to provide a separated non-smoking area that makes up at least fifty percent of the venue's total area.
If the bar or restaurant is not bigger than fifty sqm (or eighty sqm, if the local authorities agree that the available room cannot be partitioned into two separate rooms), it is totally up to the owner to decide, whether he or she wants to operate as a smoking or non-smoking business.
All smokers rooms have to be provided with warning signs ("Smoking endangers your own health and the health of your fellow people").

Although the original conception of the law comprised various
restrictions with regard to employee protection, most of those have been discarded. Nevertheless there are restrictions for mothers-to-be and juvenile trainees.

Austria: Surprising Health Minister

Like her counterparts, Austrian health minister Andrea Kdolsky is a self-confessed fighter against tobacco.
However, she comes to the conclusion that smoking bans in the hospitality industry are futile, because „People in Italy unfortunately do not smoke less than before the ban, they just resort to smoking in the streets. So far there is no indication that a smoking ban in bars and restaurants might lead to a change of general smoking behaviour.“

Such a degree of forthrightness is something we would not have expected from one of today's health ministers. She frankly admits that the ban's main purpose is the decimation of active smokers. At the same time she refutes her Italian colleague's thesis about the ban's „positive“ effects.
Contrary to the concept of public health authoritarianism, Kdolsky furthermore declares that she appreciates the „freedom of the indivdual“, conceding that „in his or her own domain everybody should be free to do what he or she likes“.

As if this saying would not be a revolutionary enough feat for a health minister, Kdolsky's view of the Secondhand Smoke legend is a pleasant exception in comparison to the usual propagandistic delusions spread by her colleagues.
She states that there are „lively debates about this topic“, but at the same time admits
that “in view of recent scientific findings she cannot confirm“ the assertion that Secondhand Smoke causes up to one hundred fatalities in the Alpine Republic per annum.
How true! By contrast, Germany unfortunately seems to be ruled by credoulousness and the ignorance of scientific facts.

Another intriguing point is, that the alleged number of fictitious victims of Secondhand Smoke
given for Austria is proportionally (in relation to the total population) much smaller than the one
estimated for Germany.
On the other hand, Austria's smokers make up a higher percentage of the population. According to official data from a study by order of the Ministry of Health, the majority (!) of adult Austrians indulges in smoking.

This is not a small, almost evanescent minority that may be easily used as a scapegoat.
Finally, Austrian citizens tend to be more critical concerning the big cleansing project for a „Smokefree Europe" than other people in the EC.

Smoking bans in Germany – Jurisdiction

Laws are theory, jurisdiction is practice. And there have been some interesting court decisions regarding the German smoking bans.

In March, the State Constitutional Courts in Rhineland-Palatinate and in Saxony ruled that bars with just one room (thus no possibility of separating a smoking area) are provisionally exempt because they could face bankruptcy while waiting for the court's final decision. But this applies only to venues without employees.

In April, an Administrative Court in Schleswig-Holstein came to the same conclusion in an individual case, the State Administrative High Court recently expanding this to a venue with two rooms and one employee. All similar bars in Schleswig-Holstein can refer to these specific cases and ignore the ban.

Shisha bars are provisionally exempt from the smoking ban in Saarland, according to a verdict of the State Constitutional Court in March.

The funniest verdict came from an Administrative Court in the above mentioned Schleswig-Holstein. It ruled that a bar owner does not have to abide by the legal requirement to put up no-smoking signs. The judges just said: A no-smoking sign is not an effective means to enforce a smoking ban.

There were also a couple of attempts for judicial review by bar owners and individual smokers that failed. And Bavarian smokers' clubs that stood the test of law.

Why do most of these decisions have an interim character? Because the most important and powerful of all German courts, the Federal Constitutional Court in Karlsruhe, will rule in a few weeks, probably on July 30. Everybody is waiting for its position on the no-smoking laws of two states.

It is widely expected though unsure that “Karlsruhe”, the “Red Robes”, will declare parts of these laws to be unconstitutional. Yet it might be possible that they base this judgment on the uneven competition between one-room bars without the possibility of separate smoking areas on the one hand, and larger venues which have this possibility on the other. In this case, leveling the playing field could also mean abolishing smoker rooms altogether, at least as a legislative reaction.

Update: Also in Berlin, shisha bars (at least those that don't serve alcoholic beverages) are exempt until the final decision.

HS patients of all countries, unite!

Last year, German communist thinker Karl Marx (1818-1883), was ‘diagnosed’ with hidradenitis suppurativa (HS), a skin disease consisting of “’furuncles, boils and carbuncles’”. Historical research by British dermatologist Sam Shuster revealed that Marx complained about them being on his “posterior and near the penis”.

Well, let’s not dig too deep into the hypothesis that this illness may have influenced Marx’ scholarly works and political thinking. Whatever one might think of him, Marx continues to be an inspiration for economists, sociologists, philosophers, political scientists and historians. Today junk being the leading scientific discipline it is no wonder that Marx also inspires lifestyle epidemiologists. Two of them, Rudolf Happle and Arne König, from the Department of Dermatology at Marburg University, recently came up with “research” providing “evidence” for the cause of Marx’ skin disease.

„Smoking triggers hidradenitis suppurativa“ was their ground-breaking conclusion in an article in the British Journal of Epidemiology.

Sure, Marx loved his cigars, according to a contermporary, he was a “passionate smoker” – like many influential thinkers and revolutionaries. But how do the skin doctors link these two factors?

The quote two questionnaire studies, one of them carried out by themselves, saying that a high percentage of HS patient were active smokers, higher than the average of the population or the control group. Needless to say that the value of such studies is limited due to their methods (sampling, often without random groups and a very small number of cases, omission of other risk factors etc.). But, combined with some “in vitro” study, enough “proof” for the Germany scientists to complain about smoking not being recognized as a risk factor “of crucial causative significance” for HS.

This has been quoted by a few media, including the German Ärzteblatt. But they failed to mention the comment by the above mentioned professor Sam Shuster, directly following the Happle/König article in the same issue of the BJD.

“Happle and König go well beyond what is permissible from the evidence“

, he explains in his witty and sharp analysis, pointing out that of the 63 patients mentioned in their own questionnaire study, only 32 started smoking before their skin disease, 10 of them took up the habit AFTER they began suffering from HS.

“While a smoking trigger makes an interesting variant on the smoking gun, the notion that smoking fires HS is a totally unsubstantiated allegation."

Even for the historical case of “patient” Marx, the authors’ conclusion cannot stand scientific scrutiny:

“If most of his confreres smoked, Marx’s smoking habit would have no statistical significance“.

We would have to know more facts and data from that time.

For Shuster, the Happle/König contribution to blame smoking for all evils in the worlds, is a typical example for the abuse of statistical associations in epidemiology:

“Causal mechanics is something it cannot do, and the frequent, inappropriate attempts serve only to produce the daily horror stories and lists of unsubstantiated associations that clog our journals and newspapers. Use of this bastard epidemiological substitute for science has spread like a cancer; it is doing much damage to genuine research, and has done much harm to the public’s belief in medical science. Old Marx was a tough thinker, very keen on a scientific rationalism, and he would have hated this development. But he also had a wicked sense of humour, and would have laughed it out of court – between bouts of his smoker’s cough.”

Wise words. We can only add that these methods are a standard procedure in anti-smoking research and that people using this “bastard […] substitute for science” might themselves be “bastard substitutes” for scientists.

Smoking bans in Germany – Laws

Federal ban since September 1^st, 2007

- Federal buildings (separate smokers’ room are allowed, but don’t exist in many of them)

- Means of public transport and taxis (separated smokers’ coaches in trains are allowed but state-run monopolist Deutsche Bahn abolished them)

- General smoking ban for 16- and 17-olds in public (and prohibition of selling tobacco products to them, exemption for publicly accessible vending machines until the end of 2008)

The protection of work force is federal competence. Note that there is no total smoking ban for workplaces.

Statewide bans (starting between August 2007 and July 2008)

- Public Buildings, (public and private) hospitals, nursing homes, schools, youth clubs, cultural and sports facilities etc. (with some variety between the individual states, especially with regard to smokers’ sections and prisons)

- Hospitality venues (in all states except Bavaria, separate smoking areas are allowed)

Rules about smoking areas differ from state to state. In all of them, the non-smoking sections must be larger than the smoking sections. In some states, access to the non-smoking section and the toilets has to be non-smoking, in others, landlords are granted more flexibility.

A crucial question is the possibility of venues becoming smokers’ clubs, which exists in several states. This also applies to freedom of choice for non-public meetings (“Geschlossene Gesellschaften”) in bars and restaurants.

In one small state, bars with no employees are exempt.

Here you can find official comments by Forces Germany in the legislative procedures.

"Smokers of all countries, unite!"

Our opening fanfare is a text by Guenter Ropohl, an outspoken critic of “health fascism”. Professor Ropohl has a Ph.D. in engineering (same as the infamous Stanton Glantz, ironically) and later specialized in sociology and philosophy of technology. He has written a couple of excellent pieces on junk science and smoking bans.

The following call, which we wholeheartedly support, is a part of his website translated into English.

Smokers of all countries, unite!

Millions of our people are being deprived of fundamental rights, on a worldwide scale there are hundreds of millions. They are refused the right to enjoy tobacco in public buildings, transportation, and places like restaurants, pubs, and bars. So their basic right to social interactions expressing their own personalities and choices is drastically restricted. This will certainly not stand up to judicial review by supreme and constitutional courts.

This violation of basic human rights is justified by the claim that a higher ranking value is at stake, the health of nonsmokers. The environmental air, it is said, is polluted by tobacco emissions which, involuntarily (“passively”) inhaled by nonsmokers, will cause lethal diseases.

This claim, invented in the USA some 30 years ago, has been examined ever and again. Most of the studies it is based on, however, are nothing more than statistical estimates. The results, inconsistent and highly debated among scientists, are not able to demonstrate causal evidence for the alleged health dangers of environmental tobacco smoke. Activists of public health, however, vehemently maintain the contrary and seek to abolish a basic human right just because of scientifically questionable speculations. To control an unproven hypothetical risk they fight against real freedom.

The smoking bans offend against a fundamental principle of legislation: the principle of appropriateness.
(1) Smoking bans are not a suitable means for establishing an additional protection of health. If environmental tobacco smoke really does not harm people’s health, smoking bans are not only unsuitable, but do not make any sense at all.
(2) Smoking bans are not required. Even if they may be suitable to protect a minority of sensitive nonsmokers against annoyance, there are measures more moderate that would obtain this protection goal. In public places, separated nonsmoker and smoker areas may be set up, so that everybody has a free choice. This had been successful in railway trains for years, until total smoking bans now are introduced that clearly have no basis at all.
(3) The disadvantages of general smoking bans are out of proportion to very questionable benefits. Millions of people have their participation in public sociability and mobility strongly interfered with. In work places, long distance trains, hospitals and retirement homes they are forced to painfully refrain from enjoyment. Finally tens of thousands of restaurant and bar owners are threatened with the loss of their business, and traditional pub and tobacco culture is being destroyed.

The managers of airlines, transport services and public buildings misuse the baseless fear of tobacco smoke as a cover-up for saving money on cleaning and ventilation through smoking bans. Yet the smokers enrich public finances through enormous sums of tobacco taxes. The basic right to full personality and social development is to be sacrificed on the altar of misplaced stinginess.

Managers and organization persons belong to the so-called ”higher circles”, and among those people smoking has come out of fashion. The “higher circles”, however, exercise the power in society. What they on their part, more or less voluntarily, are refraining from, they try to forbid others: the hairdressers and the lorry drivers, the office employees and the workmen, the shop assistants and the labourers, in a word, the “ordinary people”, who cannot stand up on their own.

The fight against smokers is a novel class struggle, a class struggle from the top. Health fanatics and managers form an alliance against the smoking third of mankind to deprive them of freedom and life enjoyment. Just as in former times the labour movement had to fight for their rights by forming powerful organizations, nowadays the smoking people have to resist growing suppression attempts. Smokers of all countries, unite!

Guenter Ropohl (Professor Emeritus of General Technology at the University of Frankfurt on Main, Germany)