18.10.2023 Under constitutional law, the federal government has comprehensive legislative competence for the protection of non-smokers. In the hospitality industry as well. To date, it has only made very limited use of this and has largely left the protection of non-smokers to the federal laender. In doing so, it is violating its obligations under international law arising from the WHO Framework Convention on Tobacco Control (WHO FCTC).
Opponents of better protection for non-smokers like to deny that the federal government has comprehensive legislative competence for the protection of non-smokers. However, this is incorrect.
In two expert opinions (WD 3 – 288/06 and WD 3 – 3000 – 215/15), the Scientific Services of the German Bundestag, as well as the prevailing opinion in legal literature, assume that the federal government has the authority to ban smoking in all areas of life under Art. 74 Para. 1 No. 19 of the German Basic Law (GG) (measures against diseases dangerous to the public). Publicly dangerous diseases are diseases that can lead to serious damage to health or death without being contagious. They must have or be capable of having a certain spread. Publicly dangerous diseases include cancer and numerous other diseases caused by tobacco smoke. The term “measures” also includes preventive measures to combat dangerous diseases. These include smoking bans. Smoking is the most significant risk factor for cancer. Studies have shown that passive smoking also causes cancer and many other serious diseases.
The draft bill for the Cannabis Act also followed this legal opinion: “The legislative competence of the federal government for the planned regulations in the area of non-smoker protection follows from Art. 74 Para. 1 No. 19 GG (measures against diseases dangerous to the public). Art. 74 Para. 1 No. 19 GG assigns concurrent legislative competence to the federal government for measures against diseases that are dangerous to the public or communicable diseases. The concept of measures can also include preventive and precautionary measures to combat diseases that are dangerous to the public, such as cancer. (…)”.
In the government draft, this was removed again, along with the ban on smoking in cars when pregnant women or minors are passengers, because there was apparently political opposition to this from the FDP. Instead, it now states: “The legislative competence of the federal government for the planned changes in the area of non-smoker protection (Article 8) follows from the competence titles claimed for the regulations to be amended (see Bundesrat printed matter 16/5049 of April 20, 2007, page 8).” With this, the Federal Government is once again referring to the view coined by the tobacco lobby at the time that the Federal Government only has a sector-specific competence for the protection of non-smokers. The legal scholar Fritz Ossenbühl had outlined this view in an expert opinion for the tobacco industry. In it, he demanded that measures against diseases dangerous to the public within the meaning of Art. 74 Para. 1 No. 19 of the Basic Law were only those that “specifically and directly counteract the outbreak and harmful effects of specific diseases dangerous to the public”. Smoking bans are not covered by this competence title. In “Qualm in der Bananenrepublik”, Der Spiegel 51/2006, and “Deutscher Dunst”, Der Spiegel 7/2007, Der Spiegel traced in detail how the Grand Coalition adopted this view because it served the interests of the tobacco lobby and therefore did not want comprehensive protection for non-smokers in the catering trade by means of federal law.
However, as the Scientific Services of the German Bundestag have correctly stated, the Basic Law offers no indications for such a restrictive interpretation (WD 3 – 288/06, p. 6). If one wanted to postulate such an “immediacy requirement”, this would have to apply in the same way to measures against communicable diseases within the meaning of Art. 74 para. 1 no. 19 GG. This would mean that significant parts of the Infection Protection Act (IfSG) would no longer be covered by federal competence – from the reporting obligations to the ban on the employment of people with certain pre-existing conditions in kitchens in restaurants (Section 42 IfSG). This is not convincing. Measures against public health and communicable diseases should be taken at an early stage in order to ensure effective prevention. A vague “immediacy requirement” cannot be found in the Basic Law. Accordingly, independent scientific studies also recognize acts of “legislative precaution” as measures covered by the competence (WD 3 – 288/06, p. 6 f.).
The federal government therefore has comprehensive legislative competence for a smoking ban, including in restaurants. This is not affected by the fact that the federal states have legislative competence for restaurant law. In areas where the federal government has (concurrent) legislative powers, federal laws also apply in restaurants. For example, the federal government also regulates the protection against infection in restaurants on the basis of Art. 74 Para. 1 No. 19 GG (measures against communicable diseases), in that Section 42 of the Protection against Infection Act stipulates: “Persons who have contracted or are suspected of having contracted typhus abdominalis (…) may not work or be employed (…) in kitchens of restaurants and other establishments with or for communal catering.” § Section 10 of the Youth Protection Act stipulates: “In restaurants (…) tobacco products and other nicotine-containing products and their containers may not be sold to children or young people, nor may they be permitted to smoke or consume nicotine-containing products.” Section 5 of the Workplace Ordinance also contains provisions on the protection of non-smokers in restaurants – which do not meet the requirements of the WHO FCTC. The federal government can therefore comprehensively regulate the protection of non-smokers in restaurants on the basis of Art. 74 Para. 1 No. 19 GG (measures against diseases dangerous to the public).
The Federal Constitutional Court has so far ruled on the question of the federal government’s legislative competence for comprehensive protection of non-smokers in restaurants that there is no need to decide whether the federal government could order such smoking bans in restaurants on the basis of a regulatory matter of concurrent legislation, as the federal government has not yet made use of this possible competence, or at least not comprehensively (1 BVR 3262/07, paragraph 97). The Federal Constitutional Court will therefore only make a decision on this issue if the federal government makes use of its legislative powers.
It is obliged to do so under international law. According to Article 8 of the WHO FCTC, Germany is obliged to ensure the protection of non-smokers, in particular in all indoor workplaces and in all enclosed public places. Smoking rooms may not be permitted. This includes restaurants. This must be done at national level, insofar as permitted by national law (“Each Party shall adopt and implement in areas of existing national jurisdiction as determined by national law and actively promote at other jurisdictional levels …”). In Germany, as shown, the federal government has the necessary concurrent legislative competence for the protection of non-smokers.
In the government draft of the Cannabis Act, the coalition of the traffic light coalition is committed to a rule-based international order and compliance with the relevant international conventions on narcotic drugs. The coalition must also implement the obligations under international law to fully protect non-smokers in the hospitality industry under the WHO FCTC. To date, Germany has massively violated the WHO FCTC and as a result only ranks 34th out of 37 European countries on the international Tobacco Control Scale.
The federal government’s legislative competence for the protection of non-smokers applies equally to indoor and outdoor catering. In its communication of February 3, 2021 on Europe’s plan against cancer (COM(2021) 44 final), the European Commission called for more smoke-free environments to be created, including outdoors. In its proposal to recast the Council Recommendation on smoke-free environments (2009/C 296/02), it intends to provide that outdoor catering should also become smoke-free. This is supported, among other things, by the study S. E. Henderson et al, Secondhand smoke exposure assessment in outdoor hospitality venues across 11 European countries, Environmental Research 200 (2021) 111355.
The Federal Constitutional Court has consistently emphasized that the legislator may impose a smoking ban in all restaurants without exception (1 BVR 1746/10, paragraphs 11 ff.).
The “Ampel” coalition must ensure comprehensive non-smoking protection with which Germany fulfills its obligations under international law from the WHO FCTC. This should apply equally to tobacco, e-cigarettes and, where applicable, cannabis. The federal government has the necessary legislative powers to do this. It must not shirk its responsibility.