Wake-up call: Does vaping come under the smoking ban?

It's 10 years since the smoking ban in England and Wales, so how have pubs dealt with its effects? James Daglish takes a looks back

The problem
It's been 10 years since the start of the smoking ban in enclosed public places in England and Wales. While health campaigners have praised the introduction of the ban, some people within the hospitality sector feared it would lead to the demise of the traditional pub. While this hasn't been the case, the ban arguably did help the rise of the gastropub as well as leading to some other interesting knock-on effects. One such knock-on effect is the increase in vaping. Am I within my rights to ban that in my establishment too?

What does the ban cover?
In short, smoking is being in possession of lit tobacco or of anything lit that contains tobacco, or being in possession of any other lit substance in a form in which it can be smoked. E-cigarettes or vaping are not included in the ban.

The premises to which the ban applies are those that are ‘enclosed' or ‘substantially enclosed' and open to the public (whether by invitation or not and whether upon payment or not), used as place of work (including voluntary work) by more than one person and used as a place of work where members of the public might attend.

Some of the exemptions to the ban include smoking as part of a performance where smoking is required for artistic integrity, and there is also an exemption for designated bedrooms in hotels, guest houses or similar establishments, and one for specialist tobacconists, though these seem to be rarely used.

Expert advice
One of the most surprising consequences of the ban was the sudden realisation that tobacco smoke often masked other unpleasant odours, for example, beer spillage and cloakroom smells. Once the air was clear, many establishments were forced to freshen up and improve cleanliness. Furthermore, the lack of smoke and improved cleanliness encouraged more families to visit pubs, particularly the growing number of gastropubs.

The ban also saw the emergence of groups of smokers out on the street, sometimes leading to complaints about noise or litter.

Noise leakage can be a particular problem as external doors were opened and shut far more frequently. One creative solution is the construction of what amounts to an external bar with a roof for smokers. When it comes to the public space, businesses need to be aware that if you install heaters or seats on the public highway, you need a pavement or tables and chairs licence. Even if your smokers are just standing outside, they must not block or be allowed to block the highway; as a rule of thumb, 1.8 metres of pavement should always be left free.

The use of e-cigarettes and vaping has risen since the ban. Although it is hard to draw a direct link, it seems unlikely that the two are unconnected. Although vaping isn't included in the smoking ban, many establishments enforce a blanket ban mainly, it seems, because it makes enforcement easier.

The outcome
The aim of the original ban was to reduce harmful passive smoking, and in this sense, the ban has been very successful as studies have shown that exposure to secondhand smoke has declined significantly.

The hospitality sector's robust and creative responses to the legislation has also been both heartening and, in the round, successful. Those within the industry who feared the total demise of pubs and clubs have largely been proved wrong.

If anything, the smoking ban seems to have made for more pleasant pub and club experiences, with improved overall and individual standards drawing in more customers.

Contact
James Daglish is a partner and head of licensing at Goodman Derrick LLP jdaglish@gdlaw.co.uk