Prof Dr. Stefania Negri...WHO Framework Convention on Tobacco Control wassignedby Italyon 16 June2003 and ratifiedon 2 July2008 Law no. 75 of 18 March 2008 (OJ no. 91, suppl. no. 97,

Prof. Dr. Stefania NegriJean Monnet Chair “European Health, Environmental and Food Safety Law”

University of Salerno

� Multilevel regulation and cascading obligations

� Italian legislation on smoke-free environments

predating, anticipating, broadening the scope and even

going beyond international obligations

� Legitimacy issues and the role of Article 32 of the

Italian Constitution

Italian legislation

European Union law

WHO Framework Convention on Tobacco Control

Art. 10 § 1

The Italian legal system conforms to the generallyrecognised principles of international law.

Art. 117 § 1

Legislative powers shall be vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from EU law and internationalobligations.

WHO Framework Convention on Tobacco

Control was signed by Italy on 16 June 2003

and ratified on 2 July 2008

� Law no. 75 of 18 March 2008 (OJ no. 91, suppl. no.

97, of 17 April 2008) in force as of 18 April 2008

Article 8.2 FCTC

“Each Party shall adopt and implement in areas of

existing national jurisdiction as determined by national

law and actively promote at other jurisdictional levels

the adoption and implementation of effective

legislative, executive, administrative and/or other

measures, providing for protection from exposure to

tobacco smoke in indoor workplaces, public

transport, indoor public places and, as appropriate,

other public places.”

� Directive 2014/40/EU of 3 April 2014 on the

approximation of the laws, regulations and

administrative provisions of the Member States

concerning the manufacture, presentation and

sale of tobacco and related products

transposed by Legislative Decree no. 6 of 12

January 2016, in force as of 2 February 2016

� Recital 48 clearly states that the Directive does

not harmonise the rules on smoke-free

environments, despite the fact that the provisions

of the Directive are meant to meet the obligations

of the Union under the WHO FCTC (Article 1).

Council Recommendation on Smoke-Free Environments (2009)

� calls on Member States to implement the obligations set forth by Article 8

of WHO FCTC

� recommends that Member States develop and/or strengthen strategies

and measures to reduce exposure to second-hand tobacco smoke of

children and adolescents;

� recommends that Member States develop and implement comprehensive

multi-sectoral tobacco control strategies, plans or programmes which

address, inter alia, the issue of protection from tobacco smoke in all

places accessible to the general public or places of collective use,

regardless of ownership or right to access

Article 32

� The Republic safeguards health as a fundamental right

of the individual and as a collective interest, and

guarantees free medical care to the indigent.

� No one will be compelled to undergo any health

treatment except under the provisions of the law. The

law will not under any circumstances violate the limits

imposed by respect for the human person.

Article 1 of Law no. 584 of 11 November 1975

(No smoking in selected premises and on public transports)

Ban on smoking in

a) hospitals; classrooms; vehicles owned by the State, public bodies and

private dealers of public service for the collective transport of persons;

metros; waiting rooms of railway stations, airports and harbours; train

carriages reserved for non-smokers, etc.

b) indoor venues used for public gatherings, closed showrooms, cinemas

or theatres, halls, dance halls, academy meeting rooms, museums,

libraries and reading rooms open to the public, art galleries open to the

public and public art galleries

Article 51 of Law no. 3 of 16 January 2003

(Protection of the health of non-smokers)

� Ban on smoking in all indoor venues, with the exception of

a) Private places not open to third users or the general public

b) Public places with dedicated smoking rooms, clearly marked as such

and separate from non-smoking areas

However the exception for bars and restaurants to allow smoking in enclosed and

separately ventilated rooms with automatic closing doors is not aligned with best

practices under FCTC Article 8 Guidelines (Principle 1)

Outdoor public places

Guidelines for implementation of Article 8 FCTC

23. Article 8 requires the adoption of effective measures to protect

people from exposure to tobacco smoke in (1) indoor workplaces, (2)

indoor public places, (3) public transport, and (4) “as appropriate” in

“other public places”.

24. This creates an obligation to provide universal protection by

ensuring that all indoor public places, all indoor workplaces, all public

transport and possibly other (outdoor or quasi-outdoor) public

places are free from exposure to second-hand tobacco smoke.

Outdoor public places

Article 4 of Legislative Decree no. 104 of 12 September 2013

� Ban extended to outdoor areas near schools, both public and

private

Article 24.1 of Legislative Decree n. 6/2016

� Ban extended to outdoor areas near hospitals (especially in

the nearbies of pedriatics, neonatology, gynecology and

obstetrics units/wards

Outdoor public places

� Smoke-free beaches

Bibione was the second

beach in Europe after

Plage Lumière in France

� Smoke-free parks

Private cars

� Article 24.2 of Legislative Decree no. 6 of 12 January 2016 (transposes Directive 2014/40/EU

but refers also to the FCTC)

Measures for the protection of children

Ban on smoking for drivers and passengers of

private cars/vehicles in presence

of minors and pregnant women

Penalties doubled (€ 500) in presence of a child under 12

or a pregnant woman

Private cars

� Draft Bill no. S. 1902 of 30 April 2015(not approved before the dissolution of the Parliament in December 2017)

Changes to the new road code:

ban on smoking while driving for reasons

primarily of safety (due to loss of attention)

and for the protection of the health

of passengers, especially children

Penalties would have included suspension

of the driving licence

freedom to choose lifestyle

limitations for public health

Judgments

� no. 202/1991 and no. 399/1996 on prevention of damages from second-

hand smoke in workplaces

� no. 361/2003 on exclusive competence of the State (not Regions) on

sanctions for infringements

Judgments nos. 59 and 63 of 16 February 2006

«The rules concerning smoking bans pertain to the

fundamental principles of Italian law»

(which imples that they supersede any autonomy claim

and establish an exclusive competence of the State legislator)

Art. 32 of the Italian Constitution has legitimised the introduction of

extensive bans on smoking for the protection of public health and the

right to health of non-smokers and vulnerable persons

The rules on tobacco control for the protection of public health are

considered by the Constitutional Court as fundamental principles of the

Italian legal order

The Italian legislation has thus even gone beyond the scope of

international and EU legal obligations, imposing limitations also in private

places like cars

In the field of smoke-free environments, Italian law is advanced and

consistent with Article 8 FCTC, as interpreted in the WHO Guidelines, and

with the EU Council’s Recommendation on Smoke-free Environments

Enforcement?

[email protected]

Thank you for your attention!