Anti-Smoking Enforcement Falls Short of Expectations, Blue Book on Health Rule of Law Recommends Imp

On March 27, the Institute of Law of the Chinese Academy of Social Sciences and the Social Sciences Academic Press jointly released the "China Health Law Development Report No. 2 (2022)". Reports from various regions in China show that the effectiveness of local smoking control enforcement has not met expectations, and there is still a significant gap from the goal of reducing smoking rates to below 20%. Therefore, the "Health Law Blue Book" suggests that localities should explore establishing smoking control enforcement models that suit their characteristics, avoiding a one-size-fits-all approach. During the enforcement process, it is essential to enhance evidence collection capabilities, apply electronic evidence collection devices more widely in smoking control enforcement, and encourage public interest litigation to leverage judicial functions.

On March 27, the Institute of Law of the Chinese Academy of Social Sciences and the Social Sciences Academic Press jointly released the "China Health Law Development Report No. 2 (2022)".

The "Health Law Blue Book" indicates that in November 2003, China officially signed the "Framework Convention on Tobacco Control" at the United Nations Headquarters in New York; in 2012, the Ministry of Health released the "Report on the Harm of Smoking to Health in China" for the first time. In the following decade, China's smoking control legislation unfolded in a manner of "local encircling the central", with repeated difficulties in central-level legislation, and smoking control-related regulations scattered across laws such as the "Minor Protection Law", "Tobacco Monopoly Law", and "Advertising Law", resulting in unsatisfactory enforcement outcomes.

What problems and difficulties exist in local smoking control enforcement? The "Health Law Blue Book" mentions that first, there is insufficient motivation and enthusiasm for enforcement. With limited public resources, government policy formulation and enforcement resource allocation tend to lean towards the priorities of local governments. Smoking control cannot enter the "mainstream field" of enforcement, making it a "thankless task" for local governments, which struggles to generate motivation and enthusiasm for enforcement. Second, the enforcement levels are uneven and efficiency is low. Especially in some regions where joint enforcement models are adopted, coordination costs are high, and it is inevitable that responsibilities between enforcement entities are unclear and lead to mutual shirking. Third, the difficulty of fact-finding and evidence collection in smoking control enforcement is significant. The timeliness of smoking is strong, evidence retention time is short, and evidence of violations is easily lost, making enforcement difficult.

"Local smoking control enforcement is challenging; the superficial problem lies in the enforcement itself, while the deeper issues are in legislation and policy," states the "Health Law Blue Book". At the legislative level, the absence of national-level legislation means that there are no legal grounds for fundamental issues such as tobacco management, taxation, and the methods, scope, and intensity of smoking control. Meanwhile, local legislative content is relatively outdated and lacks operability. At the enforcement level, conventional evidence collection methods fail to meet the needs of smoking control enforcement, and with a large number of smokers, various types of smoking control enforcement locations, and a complex and variable population, it is challenging to achieve good smoking control outcomes relying solely on personnel without enforcement authority. With the administrative system reform characterized by the decentralization of enforcement authority, if smoking control is not included as a major "topic" for street enforcement, the delegated enforcement authority and personnel will be assigned to more prioritized enforcement tasks, exacerbating the shortage of smoking control enforcement personnel.

Therefore, the "Health Law Blue Book" recommends that the state should undertake necessary legislative obligations. This is not only a requirement for fulfilling the "Framework Convention" but also a prerequisite and foundation for effective smoking control regulation. Secondly, it is essential to streamline the enforcement system and improve enforcement effectiveness. Localities should explore establishing smoking control enforcement models that suit their characteristics, avoiding a one-size-fits-all approach. During the enforcement process, it is crucial to emphasize training for smoking control enforcement teams, improve procedural systems, enhance evidence collection capabilities, and apply electronic evidence collection devices more widely in smoking control enforcement. Finally, encourage public interest litigation in smoking control to leverage judicial functions. Clearly define the liability for infringement caused by tobacco smoke to individuals and the environment from the perspectives of ordinary civil litigation, civil environmental public interest litigation, prosecutorial recommendations, and administrative public interest litigation, as well as the responsibilities and regulatory obligations of regulatory agencies in smoking control, environmental protection, and public health.